The Law of Freedom in a Web Page; or, the True Levellers' Standard advanced anew

The Scottish Parliament

The law is at best a lagging indicator of the social consensus; at worst, a set of rules made by the privileged to preserve privilege. In reality, all law falls somewhere on a continuum between the two, with - in democracies - politician-made law tending towards the first end of the scale, and judge-made law - for judges are everywhere appointed from the elite - towards the second. But the truth is that even at best the law lags; and it lags most when the social consensus is moving fastest.

That's where I think we are now with Land Reform. The law as it stands is mainly elite-made law, most of it, in fact, dating back before the beginning of the democratic era. Thus our great estates have their origins in the dispositions of medieval civil administration. The Bruce, and the Stuarts who followed him, did not see in their grants of land anything like the modern idea of heritable property; they made ad-hoc grants to reliable allies who could hold the area and suppress revolt. Then, in the turbulent years of Scotland's late middle ages and early modern period, through a parliament from which ordinary folk were ruthlessly excluded, the rights of the great estates were progressively fortified and extended.

Thus we have law which is mainly made by the elite, for the elite; overlaid on that is the - in itself very good - 2003 Land Reform Act which made some feeble and timid attempt to limit the power of landowners. That is politician made law, and in so far as it goes it very nearly represents an indicator of the social consensus in 2003. But my sense is that the consensus is moving, and moving fast. The 2015 act must be much more adventurous, or else the left must oppose it.

I'll start, here, by making it clear that I see law which is a lagging indicator of social consensus as morally justified law; if you like, legitimate law. Law as the entrenchment of privilege is illegitimate law - unjust law. And as Martin Luther King said plainly, “One has a moral responsibility to disobey unjust laws.” Thoreau was more long-winded, but the meat of it is the same:

"Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right."

Ghandhiji's counsel is along the same lines:

“An unjust law is itself a species of violence. Arrest for its breach is more so. Now the law of nonviolence says that violence should be resisted not by counter-violence but by nonviolence. This I do by breaking the law and by peacefully submitting to arrest and imprisonment.”

So where does that take us?

It takes us to this. The government, now, are once more considering land reform. They might - they might - do something genuinely radical, something which would meaningfully return the land to the people, something that could give us quarter of a million crofts. I am, however, a man of little faith.

The Unsavoury Cabal this week described Humza Yousaf as "yer archetype SNP politician (competent, well meaning, a bit dull)". That's harsh, but fair. The SNP governments of the past decade have been astoundingly competent and disciplined - something which, I'll be honest, I didn't expect of them. And despite their ambivalent relationship with fossil fuel and their boundless appetite for centralism, I do think they're on the whole well meaning.

But they're dull, and they're timid. They do not want to rock the boat, and, as I've argued before, I believe the lost their longed for referendum because of it. I hope that they have the courage to take on the serried ranks of the landed elite, but I fear that, with (to use their own choice of phrase) no-one to hold their feet to the fire, they will not.

The tactical question is this: when do we hold their feet to the fire? Do we do it at once, in order to lend them fortitude in their disputations, or do we wait until they have strained mightily and produced a gnat? But the strategic question is, how do we hold their feet to the fire?

The Levellers of Galloway cast down the dykes which created the enclosures, and they are heroes of mine. The Levellers of the New Model Army, seventy five years earlier, declared for universal suffrage and equality before the law, and they too are heroes of mine. But far out on the left beyond the mainstream of the English Levellers was the great hero of all Britain's Anarchists, Gerrard Winstanley, and his little band of True Levellers upon St George's Hill. It is from them I believe we must take inspiration:

“... we are resolved to be cheated no longer, nor to be held under the slavish fear of you no longer, seeing the Earth was made for us as well as for you. And if the Common Land belong to us who are the poor oppressed, surely the woods that grow upon the Commons belong to us likewise. Therefore we are resolved to try the uttermost in the light of Reason to know whether we shall be Free-men or Slaves. If we lie still and let you steal away our birthrights, we perish; and if we petition, we perish also, though we have paid taxes, given free-quarter, and have ventured our lives to preserve the Nation’s freedom as much as you, and therefore, by the Law of 92 Contract with you, freedom in the land is our portion as well as yours, equal with you. And if we strive for Freedom, and your murdering, governing Laws destroy us, we can but perish. 

“Therefore we require and we resolve to take both Common Land and Common Woods to be a livelihood for us, and look upon you as equal with us, not above us, knowing very well that England, the Land of our Nativity, is to be a Common Treasury of Livelihood to all, without respect of persons. 

“So then, we declare unto you that do intend to cut our Common Woods and Trees, that you shall not do it, unless it be for a stock for us, and we to know of it by a public declaration abroad, that the poor oppressed, who live thereabouts, may take it and employ it for their public use: Therefore take notice, we have demanded it in the name of the Commons of England, and of all the Nations of the world, it being the righteous freedom of the Creation.”

And then, of course, there's the Wobbly Man himself, Woodie Guthrie, who sang into the darkness of the second world war:

This land is your land, this land is my land
From California to the New York Island,
From the Redwood Forest, to the Gulf stream waters,
This land was made for you and me.

Winstanley was, of course, as he repeatedly claims, English. Guthrie, as his lines make clear, American. There's nothing particularly Scottish about the observation that the land is the birthright of us all, but is everywhere stolen by the elites. Land reform is an issue which unites the common people of every nation, and, thus far, of every age. But we are Scots, and Scotland is our theatre: it is the stage upon which we must act.

If our elected government will not give back to us the land of Scotland, then we must take it: we must, like Winstanley and his True Levellers, occupy it.

There are two ways we could do this. We could pitch up with a bunch of tents somewhere high profile - Holyrood Park outside Parliament, for example, while they're debating the bill. We could organise that quickly. It's a tactical response, a public gesture, which risks little more than a few arrests, a few fines, a caution or two. It's doable.

Or we could actually settle somewhere, not as a symbolic action but with the intent of hanging on, of creating a new permanent community out of some laird's grouse moor or deer forest. Scotland - both highland and lowland - is littered with abandoned clachans and fermtouns - places where folk have lived, and could again. That's not something we could do tactically. That's a strategic play, for spring of 2016 at earliest. To break ground that has lain fallow for generations, to create a tilth in which a crop can be grown, is hard work which must be started early in the Spring. To erect dwellings sturdy enough to be comfortable through the winter, to lay in fuel against that winter, take time.

It would also take a considerable amount of money, but not beyond the possibility of crowdfunding. We would need a tractor and some implements, some prefabricated dwellings, some cattle and hens, a polytunnel, a lot of hand tools. We'd need upwards of a dozen folk, all of whom would have to be hardy and most of whom would have to have experience in building and maintenance and forestry and small boat work and horticulture and animal husbandry and social process.

It would be tough - crofting is, at the best of times, even without the continuous threat of eviction. It would be tougher still if we chose an island site, although that would have the advantage of making eviction more difficult. It's probable that it would end with eviction, after a year or two, unless we could build a great wave of public support behind it. It could easily end with fines and possibly prison sentences. But all this is doable. Furthermore, it continues a good old Scots tradition: on South Uist, for example, in 1909; in Skye in 1928; and in other places too (I've left my precious copy of The Poor Had No Lawyers at home, so cannot check at this moment).

This too is doable.

Who's up for it?