TARRN 2018 – Think-Piece– Annie Mckee, the James Hutton Institute

A. McKee, 16th March 2018 TARRN 2018 – Think-Piece– Annie McKee, The James Hutton Institute Future property ownership and the impact on rural sustainability Introduction Land is the ultimate resource, upon which all prospects for development and production are derived. The ownership and management of land are fundamental to society, and land tenure is said to ‘govern the relationship between people and the environment’ (Forbord et al., 2014). Land tenure is described as the complex ‘bundle’ of property rights (Munton, 2009), based on institutions and policies, which determine “how land and its resulting resources are accessed, who can benefit from these resources, for how long and under what conditions” (Robinson et al., 2014: 282). It is critical for society to evaluate and renegotiate the institutions of property ownership and use, and property rights are interconnected with the sustainability of rural areas. This think-piece aims to explore the emerging literature on, theory of and potential for new ways of property ownership and associated property rights (cf. Hodge and Adams, 2012; Wittman et al., 2017; Hoffman, 2018), and the implications of these shifts in perspective on property rights in resolving issues of inequality, social justice, and sustainability (i.e. economic, social, and environmental). In particular, the think-piece will explore knowledge and understanding on progressive property rights theory, which promotes a norm of social obligation in property rights (Lovett, 2011; Rosser, 2013; Alexander et al., 2009) (Section 1). The think-piece will draw on learning regarding partial or ‘plastic’ property rights, where mutual cooperation is necessary to underpin successful outcomes from the land resource (Wolf, 2017; Roberts and McKee, 2015). This theoretical exploration will be grounded in illustrative examples from Scotland (Section 2), due to the ongoing process of land reform since Scottish devolution, and the establishment of the Scottish Parliament in 1999, providing an opportune and accessible case study1. In Scotland, land reform policy has been developed in order to deliver a “democratically accountable and transparent system of land rights and promotes fairness and social justice, environmental sustainability and economic prosperity” (McLeod, 2014 in Scottish Government, 2014: 1). The background to Scottish land reform policy is outlined in Section 2. This think-piece will draw on research commissioned by the Scottish Land Commission to increase land ownership diversity and reduce the concentration of private ownership, through adopting new models for increasing land availability for new entrants to agriculture (Section 2.1). Concluding thoughts and personal reflection is provided in Section 3. Finally, the think-piece will raise questions for discussion on future research (Section 4). 1. Property rights theory: beyond private property Land reform may be defined as the redistribution of rights to land to meet social, economic, environmental, and political demands, and the rebalancing of rights and responsibilities to facilitate a ‘healthy society and environment’ (Warren and McKee, 2011). The recent Land Reform (Scotland) Act 2016 (as described in the following section) includes measures that require landowners to demonstrate that their land management contributes to furthering the sustainable development of rural communities, providing greater opportunity for communities 1 It is also the case study most familiar to the author (as it is my home and the focus of all of my research to date), thus suggestions for international comparisons would be welcomed from the TARRN participants. 1 A. McKee, 16th March 2018 to acquire land2, and new rights for tenant farmers. An overarching objective of this key legislation is to reduce the concentration of private landownership, and the measures in the Act may be considered as further challenging private property rights, emphasising the rights of tenants and previously disempowered rural, and urban, communities. The aspirations of the Scottish policy makers with regard to social justice in the land governance system, encapsulated in the various land reform legislation (see Section 2), are closely aligned with those held by the progressive property law theorists, and described by Lovett as: “a long cherished vision of shared social interests in land” (2011: 742). The progressive property rights school describes an alternative to classical, exclusion-based theories of property (cf. Ostrom and Schlager, 1996). In particular, progressive property theory promotes a norm of social obligation in property rights, and the value of property rights to promote human flourishing, an equal and democratic society, and the protection of the natural and human environment for future generations (see Lovett, 2011; Rosser, 2013), thus: “Rather than serving as platforms for self-regarding behaviour, property ownership and property law become the place for building community, not merely satisfying personal preferences” (Lovett, 2011: 746). This collection of key property law thinkers3, as summarised by Lovett and Rosser, argue that property law is underpinned by relationships (i.e. between property owners, co-owners, landlord and tenant, owners and non-owners, plus owners and the state), which must be continually renegotiated in order to best meet the needs of all parties. Property rights, in this view, therefore enable both owners and non-owners to pursue their own objectives within ‘practices of social cooperation’ (Lovett, 2011: 744). Progressive property theory lends itself to greater political expression, with less focus on exclusion rights of private property; instead it “emphasises the other sticks in the bundle” (Rosser, 2013: 149). This collection of theoretical perspectives4 seeks to understand the “underlying values that property serves and the social relationships is shapes and reflects” (Alexander et al., 2009: 743). Efficiency is not considered the only metric by which to measure the success of property law. Furthermore, in their ‘Statement of Progressive Property’, Alexander and colleagues explain that due to the need for human equality, “property laws should promote the ability of each person to obtain the material resources necessary for full social and political participation” (2009: 744). This view is underpinned by Lockean principles, asserting that ‘each person has an equal right to acquire property up to the point that it limits another’s ability to do so’ (Thompson, 2015; see also Vaughn, 1980) and the limitations of natural rights (i.e. moral principles) bound scale of land ownership to that of potential use (Vaughn, 1980). In his recent paper, Hoffman (2018) describes the ‘classical liberal’ view of private property (specifically in the US), which creates a ‘sphere of personal liberty’, and the commodification of land as a result. In contrast, Hoffman highlights the reality of private property infringements 2 In addition to the extended powers in the Community Empowerment (Scotland) Act 2015. 3 Including Gregory Alexander, Eduardo Peñalver, Joseph Singer, Eric Freyfogle and Jedediah Purdy (Lovett, 2011). 4 The progressive property school includes the perspective of the ‘social obligation norm’ described by Gregory Alexander, ‘virtue ethics’ as outlined by Eduardo Peñalver, and ‘democratic estates’, as promoted by Joseph Singer (see Rosser, 2013). 2 A. McKee, 16th March 2018 and the blurry boundaries between private and public goods (cf. Geisler, 2000 in Hoffman, 2018). As an alternative, he presents the perspective of ‘civic republicanism’ and the ‘proprietarian tradition’, thus: “the purpose of property is to promote good social order”, and that all property exists for the public good (Hoffman, 2018: 132). The proprietarian view maybe considered in close alignment with progressive property rights theories, in particular, the requirement for all of society to have the resources necessary to participate in social and political life (cf. Alexander et al., 2009). Further, Bryden and Geisler (2007) assert that property rights are a key component of community empowerment, and without which community participation is ‘hollow’ (see also Mc Morran et al., 2014; Skerratt, 2013). Property ownership allows participation in the public sphere, therefore the proprietarian view (in America at least) is grounded in the need for landownership diversity, as well as private property rights that are consistent with the public good. Rosser (2013), however, is critical of perceived insufficient radicalism of the progressive property rights school, and argues that a shift in debate is necessary from what type of property law is considered ‘a good thing’ to consider how to deliver the aspired social outcomes, including equality, and social/environmental justice. Indeed, Hoffman (2018) describes a history of changing property rights in accordance with instrumentality, whilst Wolf (2017) highlights the role of pragmatism in leading to transformational change, such as the embedding of landownership, management, and transfer, in social and legal contexts. As demonstrated in Section 2, it may be argued that this underpins the trajectory of land reform actions and political objectives of the Scottish Government. A key theme of the theoretical perspectives presented in this think-piece is the desire to shift land from its status as marketable commodity to community asset, in order to fulfil public good outcomes, including social justice and environmental sustainability. This local, communitarian

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