Britain’s Right to Roam: Redefining the Landowner's Bundle of Sticks

Abstract

Britain recently enacted a “right to roam” in the Countryside and Rights of Way Act (CRoW) 2000. At first glance, CRoW appears to be a dramatic curtailment of the landowner’s traditional right to exclude; it opens up all private land classified as “mountain, moor, heath, or down” to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more than one party to have rights in a particular piece of land. The new law highlights some important public values regarding freedom of access that have been all but forgotten in the United States. The law calls into question U.S. Supreme Court precedent that has enshrined the right to exclude as an “essential” stick in the bundle of property rights and serves as a powerful alternative to the Court’s formalistic notion of property rights. Given the differences in its history, culture, and legal system, the United States is unlikely to follow Britain’s lead in enacting a right to roam; nevertheless, the study of CRoW contains valuable lessons for Americans.