Abstract: Common land in England presents us with a complex proprietary system: although privately owned, third parties have common land use rights over it, which differ greatly in kind because of varied customary traditions. The paper will begin by tracing the modern history of the property rights on the commons, focusing on the eradication of customary proprietary traditions by modern legislation (Commons Registration Act 1965). The analysis of the evolution of property rights will be linked with that of environmental governance mechanisms and designations to which many commons are subject today and with the quest for sustainable management of common land. Using the analytical framework of legal pluralism, the paper will investigate the power relations between three principal legal orderings applicable to common land governance: environmental management, current property law, and soft and customary law. This analysis will be grounded in the lands of three case studies. Looking at the interrelations of the three legal spheres, it will be possible to provide an analysis of the interplay between property rights and environmental protection as well as offering practical solutions for their reconciliation through the formation of self-regulatory statutory Commons Councils, corporate bodies envisaged by Part II of the Commons Act 2006.
Common land is an extensive common-pool resource1 in contemporary England:2 although it is mostly privately owned, third parties have rights over it. Its current proprietary system is the product of complex historical dynamics, originating in the medieval period. The modern definition of common land is found in the Commons Registration Act 1965 ('CRA 1965'). Under s. 22(1) of the CRA 1965, common land is defined as (a) land subject to rights of common, or (b) waste land of a manor. In relation to the second limb of the definition, it is only recently that the courts have extended the definition of 'waste land of a manor' to include also waste land formerly of a manor.3 As for the first limb of the definition, rights of common are a type of profit a prendre, defined in the CRA 1965 as including grazing rights (sometimes expressed as 'cattlegates' or 'beastgates') and rights of sole or several vesture or herbage or sole or several pasture.
Rights of common can exist in two principal forms today: (a) rights of common appurtenant (rights of common attached to the dominant tenement), or (b) rights of common in gross (rights of common not attached to any land).4 Under s. 9 of the Commons Act 2006 rights of common appurtenant cannot now be severed from the land to which they are attached. The goal of this anti-severance clause is to foster local and territorial management of the common, avoiding the sale of rights to farmers not familiar with local traditions and the environment of a particular common. This provision of the Commons Act 2006, although not universally welcomed, is an example of the sustainability ethos undeipinning the Act. In fact, the Commons Act 2006 aims to achieve sustainability on common land by rectifying and expanding the narrow legislative horizon of the CRA 1965, while also reversing the House of Lords' decision in Bettison v Langton, which permitted the severance and separate sale of rights.5
The Commons Act 2006 is, however, far from being the only law governing common land today. There exists an ample array of formal and informal laws with relevance to the management of the commons. Following the analytical framework of legal pluralism as developed in the field of legal anthropology and sociology of law, this paper identifies three principal groups of formal and informal normative rules and orderings relevant to the governance of common land: (1) the environmental management sphere, (2) the soft and customary law sphere, and (3) the property law sphere. The multiple articulations between these spheres are both temporally and spatially contingent. In order to show this, the paper describes and compares the complex legal landscape of three English commons and its influence in producing different understandings and practices of sus¬tainability. Accepting the conventional conceptualisation of sustainability as comprising three aspects (the environmental, the social and the economic),6 it becomes clear how the interplay between the three legal spheres in different spatio-temporal coordinates renders one aspect of sustainability predominant over the others. The principal argument that will be advanced in this paper is that this conflicting situation is not unavoidable. It has the potential to be resolved with the formation of statutory Commons Councils, the institutional answer to common land management envisaged by Part II of the Commons Act 2006. The article will therefore open with an introduction to legal pluralism and its relevance to the study of common land governance in England and Wales. A reappraisal of the diachronic legal profile of English commons is then offered using a legal pluralist analysis. This is followed by an empirical analysis of particular conceptualisations of sustainability using research findings from three case studies. The paper concludes with a window into the future by discussing the potential role of Commons Councils in reconciling divergent legalities and in fostering an encompassing and democratic understanding of sustainability.