Passing On

[Malcolm Ramsay]

I'm going to die. I can't be sure how or when (my plan, for what it's worth, is to die of satisfaction on the 21st of August 2066, though I dare say the gods have other ideas); I can be reasonably sure, however, that when the time comes I will hold the legal title to a small plot of land .... and English law delegates to me the responsibility for saying who should become the next owner of it.

Most people don't see it that way, of course; rather than seeing it as a responsibility, they see it as a right - a natural right even - that the current owners should be able to pass on what they own to whoever they please. As a result, inheritance law operates for the private benefit of individuals, rather than for the benefit of society at large. If I could choose to change one single thing towards making a better world, this is the one I would pick; it creates a distortion to the circulation of wealth which takes away people's natural right to land, and thereby strips them of their natural freedom to live independently. It's not the only fundamentally flawed aspect of our society, of course, but to my mind it is central to the disease of our present civilization.

Land is uniquely important because we cannot sustain life without it, and for practical purposes there is no activity we can engage in without using it. Those who control it and can deny others access to it, have a hold over everybody else which tilts the whole economic and social landscape in their favour. Those who are denied access to it become tied to a system in which (at bottom) their only real power is destructive. Over the centuries, our society has developed a host of structures and laws which mitigate that powerlessness, but it has never addressed the fundamental flaws which the whole system is built upon.

The allocation of land and other resources is the core function of any organised society - it's what our existing system developed around, and it will have to be at the heart of any system which has a long-term future - and the process by which it is transferred between generations is a crucial aspect which I don't think any society has yet got right. When I look at the social structures which we've developed over the centuries, I'm mostly very impressed - a lot of them could be incorporated more or less unchanged into a healthy system - but there are undoubtedly a (small) number of fundamental things which do need to be changed. This is one of the most important.

Once we look at the issue properly and think about how the custom might have come into being originally, it's not hard to see that nominating a successor should be seen as a responsibility, rather than a right. The dead, after all, are gone; so what they used to own becomes ownerless - and as such becomes a possible source of conflict. The community has an obligation to assign ownership in order to pre-empt that conflict, and to see that the property is used to best advantage. But (once a society grows to incorporate multiple communities) the state has no direct knowledge of the property, and no knowledge of the relationships which people still living might have with it - and therefore has no way of knowing who would be the best person to take it over. If they had to conduct a full inquiry every time someone died, that would be a huge burden - so they delegate responsibility to the person who is/was best placed to identify who would make the most of it.

And mostly, at the level of personal use, the best person to take it over (historically), would have been someone who had grown up with it, and learnt the way of working with it - the offspring of the deceased. The basic principle of property passing by family inheritance is undoubtedly sound, and I've no doubt it will continue to be the dominant method even in a truly just society (and, as an aside, it can have clear merits even in political dominion; just as a farmer's children are likely to develop a farmer's way of thinking just by growing up with a farmer, so a ruler's children are likely to develop the habits of a mind of a ruler, simply by observing their parents at work). But the essence of the hereditary principle is not that there is a right for children to inherit what their parents leave, it is that there is a probability that they would be the ones who would make best use of it.

I believe that this simple change of perspective - treating the passing on of land (and other finite resources) as a responsibility rather than as a right - would remove a fundamental barrier to social justice. Very few people, I think, would try to argue that there is not a fundamental right to land .... but because land ownership is integral to the operation of the whole economy, as long as all of it is already owned by somebody the political difficulties of getting that right enshrined in law are overwhelming. But until it is enshrined in law, there is no possibility of a world where everyone has the opportunity for self-fulfilment. It's by no means the only barrier, but in my view it is the hub of the treadmill which so many people are condemned to.

I can't see conventional political processes bringing about a change like this - it's too entrenched for politicians to initiate reform without pressure from the public, but the benefits are too remote for large numbers of people to get excited enough to create that pressure. I think it is possible, however, that it might happen through the courts. My feeling is that if the courts can be brought to recognise the power to bequeath land as a responsibility rather than a right, it could allow reform to be brought about on a case by case basis, with large bequests of land being open to challenge if they're not consistent with the landholders' duties as agents of the state.

There are of course a number of questions which would need to be answered for that to come about; how to bring a case which would get the precedent set; who would have the right to make those challenges; and what would happen with the land when a challenge was successful. I possibly have an answer to the first (though I won't go into it here), but I think having answers to those last two questions would also be essential for the courts to accept it - and that brings me to the broader question of what we can do as individuals.

The answer to this - the question of what I myself should do individually - crystallised in my mind after I read something about the Diggers, who, more than 350 years ago, were demanding exactly the same things that land-rights activists are demanding today! Will that still be the situation in another 350 years time? I do have hopes, as I said above, that the laws which cause it can be changed through the courts .... but I also recognise that perhaps they can't. Does that leave us helpless as individuals?

Well, if we're willing to take a long view and accept that, even if we can't mend the present, we can make things better (bit by bit) for future generations, then the law itself offers us an avenue for change. Since the law allows us to pass on whatever we own at our deaths to whoever we like, then we (possibly) have the option of leaving it to people who have bound themselves to pass on their own wealth responsibly, when they in turn come to die. It's a slow route to reform - it might take centuries to bring about a transformation - but it is a sure one, I think .... and by taking it I believe we would in fact greatly increase the chances of rapid reform.

We (possibly) have the option, I said ....  and here's the rub. If nobody has taken that step - of binding themselves to pass on their own wealth responsibly - then none of us can do it, because we have nobody we can pass it on to. For practical purposes the only way we can bind ourselves, in any way which would be recognised in law, is in the context of a private society - and by definition that's not something any individual can set up alone.

I don't think our existing social system can ever develop incrementally into a form which would satisfy me, any more than a caterpillar can become a butterfly through growing incrementally; something has to change within it to trigger a metamorphosis. As I see it, for us to move into a new phase of the human story, an embryonic imago society has to form, which will then absorb, from within, those parts of the existing system which deserve to be kept, and shuffle off the customs and laws which deny so many of us our proper freedom. I see this issue - the passing on of wealth from one generation to the  next - as something which can catalyse that process.

But a society needs people; the society I'm envisaging needs people who are willing to go beyond aspiring to live responsibly, and make a legally binding commitment to do so. For such a society to come into existence, I suspect, will need someone to embrace it who has a gift for bringing people together .... and I, unfortunately, seem to have as much talent for networking as a tone-deaf elephant has for playing the harp. So where do I go?

[Edit: Below are my replies to something Wolfbird posted here in response to a comment I made on the Dark Mountain main site. Unfortunately his comments disappeared when he left the Uncivilisation network, but the essence of them is there in the parts I quote.]

[Malcolm Ramsay]

Thanks for the comm

ent, Wolfbird. At one time I would largely have agreed with most of what you say, but when I thought about it more deeply I came to the conclusion that it's not as simple as that.

"If justice rested upon the best, fairest argument, or what is Right, then they wouldn't have got the land in the first place !"

As I see it, what justice rests on is a system of law, and the order it produces. Simplifying hugely, at the time they got the land, law existed largely to maintain the division between rulers and ruled, and their commitment to justice was essentially pragmatic - people caused less trouble when they thought they were being dealt with fairly.  Over the centuries that's changed (in principle if not in fact); concepts such as equality before the law are well established, and justice is treated as a central goal - but some fundamental laws still operate in the same way that they did then. In other words, they got the land under a very different system, and they've held onto it because nobody's made sure that the operation of law has kept up with broader changes.

"Those guys have the land. Nobody can force them to part  with it, because there is nobody with more power than them."

A thousand years ago they held land because they held power - overtly, by the sword. That's no longer the case. Now they hold the land because the law assigns it to them, and (in principle at least) the law is subject to the will of parliament, which in turn is subject to the will of the electorate. Big landowners and other rich people may distort the process covertly in all sorts of ways, but that's very different from exercising power openly. Ultimately, if Parliament passes laws which take that land away from them, they will lose it, because Parliament most certainly does have more power than them.

They do certainly have a lot of influence behind the scenes, and attempts at land reform over the last century or more have not got very far because of that. That's one of the reasons I say in the blog post that I can't see conventional political processes bringing about a change like this. The approach I'm looking at - bringing up the question of the fundamental purpose of inheritance law with the court - has the advantage that instead of trying to convince 300+ politicians (people whose primary interest is the exercise of power) that it is in their political interest to bring about reform, it only depends on convincing nine judges (people for whom justice has been a central concern for a large part of their lives) that the current interpretation of the law is incompatible with the principle of equality before the law.

They might reject the argument, of course, and even if they accept it they might say that the law needs to be changed by Parliament (though I don't think it's written into any statute). But in that case I'd expect them to issue a declaration of incompatibility which would oblige Parliament to confront the issue, whereas at the moment it can ignore it. And if Parliament continued to ignore it, in the face of a declaration by the courts that current law is fundamentally unjust, that would raise constitutional issues which currently don't get much attention.

 

(This system apparently doesn't allow long comments on blogs, so this continues in another comment)

[Malcolm Ramsay]

 

"If you wanted to change that, you've got to unravel the whole of the British ( unwritten ) Constitution."

That's actually the angle I started from; I decided years ago that the whole political system was fundamentally flawed, and started thinking about what changes would satisfy me .... and then concluded that land law is so important that it needs to be regarded almost as part of the constitution. I've written about some of the constitutional changes I think are needed in Parcivilised Government and Between Law and Politics, so I won't go into that here.

I said above that at one time I would largely have agreed with most of what you say. I started to think about it in more depth after concluding that the current system would probably not change without some kind of violent confrontation. That set me thinking that a mature society must recognise the possibility that it might become too inflexible and should therefore recognise the concept of lawful rebellion; subsequently (when I came across some others using the phrase) I came up with a definition of what I would consider that to be:

"    For me 'Lawful Rebellion' means rebellion which is rooted in a commitment to law - there's no need for it to be permitted by existing laws, but it must arise from an undeniable failure of the established system; it must offer a viable solution to that failure; and it must allow a reasonable opportunity for the established system to implement that solution. Only if that opportunity is ignored does rebellion become justifiable, and even then, to my mind, only if it can address the deeper failings which prevented the resolution of the original grievance - in other words, it must offer not just a solution to the failure of law, but also a solution to the failure of government. That means having a clear idea, in advance, of what will be put in place if the rebellion succeeds."

The key phrase there, for this debate, is 'an undeniable failure of the established system'. It's easy to look at how unjustly the system works and conclude that the people running it must be wicked, but as far as I'm concerned anyone contemplating a rebellion of some kind (and if what you're saying is correct, that's what it would take to bring about change) has to have an argument that would stand up in court. But when I put aside my prejudices, and looked at the system impartially, what I saw was that it would produce huge injustice merely as a result of people implementing existing laws in good faith - because some laws are so fundamentally wrong that they cannot do otherwise.

This doesn't mean that there isn't some wickedness as well, of course - there obviously is - and it doesn't excuse the failure of generations of privileged people to overturn laws which have produced such an obviously unjust society. I find it quite easy to believe that many of the people at the top are as bad as you paint them, but I don't see them as much of an obstacle. They depend, for the maintenance of the system, on a great mass of moderately privileged people who, in my experience, are mostly sincere and well-intentioned, and whose biggest failing is that they regard it as someone else's job to find a way to make the world fairer. Those people recognise that there is something wrong, but they believe (and need to believe) that the system is basically benign.

That's why I said, on the Dark Mountain blog, that defenders of the status quo would "basically have two options; one would be an explicit repudiation of Right; the other would be a pragmatic argument that no other system would work". An explicit repudiation of Right would destroy the illusion which keeps their supporters on board - I don't think they could afford to do it.

[Malcolm Ramsay]

Hi Wolfbird

"But the whole soceity is built upon the concept of private property and ownership ( which was all originally stolen, from nature, or from other people who owned it in common ), so, IMO, the chances of changing that is nil, because everyone who owns some land or house, has a vested interest, and vastly outnumber those who don't own."

Certainly any attempt at redistribution is likely to trigger defensive reactions in a lot of people (many of whom wouldn't in fact lose by it). But I've always regarded redistribution as the wrong target, anyway; if land were redistributed without changing the laws governing how it changes hands, it would only take a generation or two for the distribution to be hugely inequitable again. To my mind, it's the circulation of wealth which really matters, because if we get that right, the distribution will come right automatically.

One of the advantages of the approach I'm advocating is the fact that, in itself, the first step doesn't change the ownership of any land - and doesn't even take away the landowner's power to bequeath it. All it does is shift the balance of power; the landowner would still be able to leave his 30,000 acres to his son, but he (or the heir) would have to be able to justify it as being in the public interest (but he would only have to justify it if there were in fact a challenge) .... whereas at the moment he doesn't have to justify it at all. It's such a small change that it offers very little scope for people to argue against it; the principle that laws do not exist for private benefit is already well established, so this would be more in the nature of a clarification of the law rather than a change to it.

My aim would be a series of challenges to wills which would establish precedents as to what should be regarded as the public interest, ideally starting with one where the landowner has no rational case. For example, if there was an estate of 10,000 acres, say, which was simply being rented out with the landowner adding no value to it, it would be very hard to argue that there was any public benefit in the landowner having any link to the land at all. Subsequent cases, over a period of ten or fifteen years, would tackle less straightforward situations, with each case focusing on a narrow point of law.

The landowners will certainly see immediately where it's heading, but as long as it's done in a series of small steps which they can't easily object to in isolation, I think they'd have trouble preventing it through legal argument. I think reformers have generally tried for more immediate radical change, in a single step, and that always offers more grey areas which defenders of the status quo can use to frighten people. My guess is that most landowners won't try to argue against treating the power-to-bequeath as a responsibility, but will try and get the politicians to define the public interest so broadly that they can carry on as before. But they will have lost the high ground which they're currently able to fall back on: they'll no longer be able to argue that their rights are under attack when people campaign for land reform.