The Rule of Law is contingent upon who makes the laws. Adherence to the Rule of Law is not binding if the laws to which one is expected to adhere are oppressive, immoral or denigrate human or natural rights. One should not obey the Rule of Law if the laws are bad.

You definition of Rights of Common describes the era subsequent to the rights of ordinary people to the land being restricted or denied by the powerful (usually in the name of protection) and by the "word" (the ability to articulate ownership on paper, or more accurately, parchment). You fail to make it clear that common people had common rights through common and communal usage of land before "Rights of Common" were enshrined in law.

To give you an example: in Australia the rights of the Aboriginal peoples have been returned to them by parliament on the basis their common land and rights were denied by the colonial interlopers. As the Aboriginals did not have writing, paper, title deeds and land registries, the identification of ancient land use, spiritual attachment or other evidence has been used to establish their modern rights. The rights are real, mining companies have today to negotiate with communal Aboriginal groups to explore and extract on their land.

Before writing, paper, title deeds and land registries all land was held in common throughout usage, not by law. Today in Asia (China in particular) and all over Africa, people who have held land simply on the basis that they, and often their ancestors, occupied and worked the land, are having it stolen from them.

Their land is being stolen in the same way as true commoners (not those defined in law) had it stolen from them in the British Isles through devices such as the Statue of Merton, the Highland Clearances and over 5,200 Inclosure (Enclosure) Acts passed by pre-democratic parliaments.

In defining "Rights of Common" perhaps you should clarify that all land was once common to all.

Yours sincerely,

Henry Harington


From Graham Bathe:

Many thanks for your thoughtful and well informed comments. 

We do of course concur with the essence of your message, i.e. that rights pre-date legislation.  This is undoubtedly the case, and we have enough examples pre-Domesday to demonstrate it.   Work by Susan Oosthuizen, recently outlined in her book, Tradition and Transformation in Anglo-Saxon England – Archaeology Common Rights and Landscape, demonstrate that Norman manorialism was often overlaid upon existing Saxon systems, which themselves may have had progenitors in Romano-British culture, or earlier.  Work by Peter Herring in Cornwall shows that the Bronze Age settlement pattern on Bodmin, with small fields intersected by wide droves, funnelling out onto the open moor, emulate comparable patterns in commoning communities today.

We might take issue on semantics.  Whilst such rights pre-date legislation, and pre-date parliament (in the sense of a centralised legislative assembly),  this does not mean that they pre-date the law.  Custom and practice became codified as rights and protected within local systems that could legitimately be called law (but not legislation).   Even today the entitlement  to use a right of way is focused on principles of common law rather than legislation. 

Where we are less sure of our ground is concerning the regulation of rights in the early historic and pre-historic periods.  We should be wary of thinking that all was equitable and non-controversial.

From Andrew Humphries

Dear Mr Harrington, Thank you for your email concerning the concept and
practice of 'common rights'. I think it important in respect of your
interesting comments to emphasise that the Foundation is primarily
concerned with 'improving' the situation from where we were only twenty
years ago. Our focus has therefore been to recognise the fragility of
pastoral commoning and undertake to improve its sustainability.

Your general points are indeed an important reflection on what
Blackstone the English jurist wrote in his commentaries on the laws of
England in  1776 that struck his imagination

'...the right of property :or that sole and despotic dominion that one
man claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe.'

Pragmatically we have taken as our guideline for our particular work
that commons exist and that they are not open access resources and in
our case in Britain has a usage strongly influenced by custom as opposed
to statute but focussed in pastoral areas on:-

The interest that a commoner has in a common is, in the legal phrase,
'to eat the grass with the mouths of his cattle , or to take such other
products of the soil as he may be entitled to.'

Even well researched historians find it difficult to understand and
explain fully 'how things were' and what has happened. Even before the
emergence of the legal system that came after the conquest societies had
rules and hierarchies but all that is above and beyond our aims and
purposes in the Foundation but nevertheless there is history to discover
and we wish you well in your efforts.