Earlier we developed the theory of public property as a special case of co-ownership. Property includes the rights of usus, fructus and abusus. This piece will discuss the nature of the everyman’s right or the freedom to roam within the theory of land as common property.
Article X-5 paragraph 1 of the draft version of the Mordan constitution states:
All land and the entire radio spectrum within the territory of the Humanist Republic of Mordan shall be common and the inalienable property of the Citizens of the Republic.
This clause establish that land is public property and hence collectively owned by the people. In conjunction with paragraph 2, which states:
The Republic shall lease out land and parts of the radio spectrum to private parties according federal regulations.
these clauses restrict the right of abusus to lease of land to individuals. Also these clauses vest holdership in the government – on behalf of its citizens.
Paragraph 4 states:
The freedom to roam might be restricted for reasons of privacy, public security or conservation.
The way this clause is phrased, implies that not only a freedom to roam exists but also it is a default state, which might only be restricted in a few limited cases.
From the viewpoint that public property is a form of co-ownership, the freedom to roam is simply the right of individual citizens to use their own property. If a general freedom to roam would not exist, the phrase “common property” would be empty words as the right to use is an essential feature of property. Without this one cannot reasonably speak of property.
If I own a car, then I am legally entitled to drive it. The idea had would not have the right to use my own car, would be absurd. And we would rightly the question whether we could speak of property in that case at all.
In a similar fashion by reserving a freedom to roam, the concept of land as public property, as opposed to state property, is given substance. And it is hardly to imagine another way to make our concept of public property more concrete than by ensuring the everyman’s right.
In essence the freedom to roam is a residual right. Even though a lessee acquires the privilege to use some land and to enjoy its fruits, he or she has to allow that his or her fellow citizens may continue to exercise a bit of their ownership rights. Of course, this only to the degree it does not unnecessarily conflict with the lessee’s right to privacy.
An important issue to observe is that article X-5 paragraph 4 does not specify what the freedom to roam actually is. This is a deliberate choice. Just because the importance of this right, a positive definition could be construed as a limited right and hence weaken this freedom. Instead by limiting the restrictions on the freedom to roam is strengthened.
Nevertheless, we will conclude with some words on the nature of the freedom to roam. It constitutes the right of people to be in green spaces, including those leased by private parties. This includes hiking, cycling and but also camping.