Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Valguarnera, Filippo --- "Access to nature" [2017] ELECD 213; in Graziadei, Michele; Smith, Lionel (eds), "Comparative Property Law" (Edward Elgar Publishing, 2017) 258

Book Title: Comparative Property Law

Editor(s): Graziadei, Michele; Smith, Lionel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447578

Section: Chapter 11

Section Title: Access to nature

Author(s): Valguarnera, Filippo

Number of pages: 22

Abstract/Description:

This chapter investigates the way legal systems address the tension between the interest of the owner to exclude others from her land and the interest of the public at large to enjoy the natural world. The analysis will primarily focus on three major components of accessing nature: the right to roam on the land, the right to gather natural resources (such as berries and mushrooms) and the right to fish and hunt. The Western legal systems can be plotted on a scale delimited by two extremes: legal systems in which the landowner’s right to exclude is not only protected, but proclaimed with grandiloquent rhetoric as part of the bourgeois ideology, and legal systems – such as the Scandinavian legal family – where a right of the public to access nature on private land has emerged over a long historical arc and, in the case of Sweden, even enjoys constitutional protection. A general conclusion of the chapter is that it is possible to identify a converging tendency. Even legal systems that traditionally offer strong protection to the landowner’s right to exclude are undergoing significant changes. In England, for example, a long and intense political debate has resulted in the Countryside and Rights of Way Act 2000, which has opened up significant areas of the country to the public. In other legal systems, the changes are taking place in subtler ways. In Italy, in 2011, case law, inspired by legal scholarship, affirmed the existence of common goods functionally linked to the satisfaction of fundamental rights, proclaiming the traditional individualistic notion of property included in the Civil Code as outdated. It is not too far-fetched to imagine that this development might have a direct impact on the public’s possibilities to access nature on private land.