Four land ethics: order, reform, responsibility, opportunity.

• Author: Bosselman, Fred

1. INTRODUCTION

   The term "land ethics"(1) has found a prominent place in environmental literature ever since Aldo Leopold rather casually and cryptically coined it in the 1930s.(2) If one defines the phrase to mean a system of thought that relates land to ideas of right and wrong, one can identify many prior systems which have achieved prominence at some time or place.

   Leopold's hope that Americans' thinking would converge toward a single land ethic has not been realized. To the contrary, our debates about land are ever more intemperate and ideological as they reflect increasingly divergent views about the appropriate role of land in American society. The discussions of property taxes, public land policies, and environmental regulations, for example, often seem to involve parties who are not really listening to each other because they hold their opponents' views in such disrespect. These debates will become more rational and less abusive if we attempt to understand how the varying roles that land has played in Anglo-American historical traditions have influenced Americans' attitudes toward land.

   We have inherited deeply ingrained ethical ideas about land that we can not easily cast aside even if we choose. Any search for a new land ethic needs to understand and play off of our different historical attitudes toward land. We need to develop an understanding of land's role in Anglo-American historical traditions to help us create dispute resolution mechanisms that take into account the deeply held values that land represents to different people. Many different land ethics exercise an important influence over the way people regard land in the United States and I do not intend to postulate an ideal land ethic. Rather, by showing the deep-seated historical origins of four different land ethics, I hope to demonstrate that the search for a single consistent land ethic, for which Leopold hoped, may be futile.

   Each part of this article focuses on a single individual whose ideas serve as a prototype for a particular land ethic. In Part II, Sir Thomas Malory's semi-legendary King Arthur represents the land ethic of medieval England, in which land symbolized order. In Part III, David Ricardo reflects the changing land ethic in post-Water-loo England, where land was seen as the vehicle for reform. In Part IV, John Muir serves as the spokesman for nineteenth-century preservationists, to whom land represented responsibility. Finally, in Part V, Justice Antonin Scalia expresses the views of modern American utilitarians, for whom land means opportunity. I conclude that only a pluralistic process in which multiple land ethics are debated will be a satisfactory basis for the resolution of many of the current bitter conflicts over land in America.

2. ORDER: THE LAND ETHIC OF SIR THOMAS MALORY

   King Arthur, the idealized British ruler(3) served as the symbolic embodiment of the land ethic of medieval England--the land ethic of order.(4) In the fifteenth century,(5) Sir Thomas Malory wrote the most famous version of the story of King Arthur,(6) illustrating that a strong monarch symbolized the end of anarchy because the monarch ruled those who controlled the land. The story of King Arthur reflects the essential role that the control of land played in the maintenance of order.

   In order to maintain order, the monarch had to ensure that land would be controlled indefinitely by those who owed their loyalty directly to him. The monarch used medieval legal institutions, such as entailment, the "real writs," and the uniqueness of land in equity to do so. However, as English society moved gradually away from a purely agricultural society to a mercantile one, the monarch's control of those who controlled the land decreased.

   1. Malory's Story of King Arthur

      In Malory's day, a monarch had the power to allocate land to favored individuals, but with that power the monarch also assumed the duty to impose and maintain order within the nation's social structure.(7) The instability of the Wars of the Roses and the fear of a return to the anarchy of the Dark Ages stimulated a renewed interest in the King who symbolized the end of anarchy.(8)

      During the so-called Dark Ages of the centuries preceding Malory's day, armed bands moved back and forth across Britain claiming whatever land they could control at any given time. A person who planted grain in the Spring could not be sure who would control the land at the time the grain ripened.(9) In these circumstances it is not surprising that the people would welcome as monarch a powerful person who could bring all of the warring factions under control.(10)

      To accomplish such control, the monarch allocated to the leader of each warring faction ("baron")(11) an area of land.(12) Malory's depiction of the coronation of King Arthur symbolizes the key relationship between the monarchy and land:

      And so anon was the coronation made. And there was he sworn unto his lords and the commons for to be a true king, to stand with true justice from thenceforth the days of this life. Also, then he made all lords that held of the crown to come in, and to do service as they ought to do. And many complaints were made unto Sir Arthur of great wrongs that were done since the death of King Uther, of many lands that were bereaved lords, knights, ladies, and gentlemen. Wherefore King Arthur made the lands to be given again unto them that ought them.(13)

      As the last leader of the Britons, a people soon to be conquered by the Saxons, who in turn would be conquered by the Normans, Arthur symbolized(14) the heroic, benevolent monarch who created law and order out of anarchy through the divine right to allocate land.(15) By the fifteenth century, the beneficent Arthurian image contrasted starkly with the factional violence that characterized most of the medieval period, and especially the Wars of the Roses in which Malory participated.(16) By that time, men attached their lands to any feudal lords who could further their interests, but only for so long as those temporary patrons could be useful.(17)

      To justify their authoritarian power, the Normans sought to exaggerate the wretchedness of earlier times "to show that the alternative to their strict rule was civil war and misery."(18) By tying the idea of law and order to a powerful ruler and his gallant knights who subdued anarchy by dominating the land from their castles, the Normans equated themselves with an almost legendary period of peace and stability.(19)

      As the English monarchs gradually solidified their control(20) and grew more confident of the stability of their reign, the rigid distinctions among the levels of society gradually relaxed.(21) But the keystone of the medieval system, the strong monarch, attained a transcendental status.(22) By the sixteenth century, it was accepted that the monarch had two bodies: a human one and a conceptual one that was "the personification of the kingly office in the guise of a corporation sole."(23) Or as Coke would put it, in the eyes of the law the sovereign never dies.(24) Land held by the monarch automatically passed to the successor and was said to belong to "the crown."(25)

      Although the monarch's control over land had become somewhat relaxed by Malory's day, it still served as the foundation for the English social structure.(26) The symbolic importance of the strong monarch was essential for the maintenance of the existing hierarchy of land tenure(27) which determined "not only the wealth and taxable capacity of the subjects of the state, but also the political and social position of those inhabitants."(28) King Arthur assumed an important role as a symbol.(29) Arthur was the embodiment of a "strong and just ruler who protected his people against barbarism without and oppression within."(30) The tale of King Arthur emphasized the need for a strong monarch, something Malory's contemporaries were unable to find until the Wars of the Roses ended in 1485 with the victory of Henry VII over Richard III.(31)

   2. The Monarch's Control of the Land: Land as Territory

      The key attribute of land to the monarchs and barons of medieval England was its boundaries, which ensured that the realm would be controlled by those barons whom the monarch trusted: "These obligations incidental to feudal tenure ... reflect a time when the king must control the private as well as the public lives of his subjects. These men were endowed with wealth and power which the king could not allow to be transmitted to untrustworthy hands."(32) The territorial relationships(33) among the human occupants, which treated each piece of land alike, regardless of its productive potential or lack thereof,(34) filled the need for a "relationship of reciprocal obligations" which would attach everyone solidly to the proper place in the hierarchical social structure.(35) In using the land law to establish a stable division of power among themselves,(36) and to establish the social status of the various lower ranks of the hierarchy,(37) the nobility relied on the power to exclude others from their lands, but generally did not use land law to influence the way the land was actually used by the feudal tenants.(38)

      Social class distinctions were not purely one-sided, but involved reciprocal obligations among the monarch, nobles, and others further down the social ladder.(39) For example, a baron might violate the code either by disregarding his oath of fealty to the monarch or by disregarding his duty to maintain peace and justice(40) among those who were subinfeudated to him.(41)

      Because land was the keystone of the social order, it was essential to develop laws that ensured that the land would continue to be controlled indefinitely by those who owed their loyalty directly to the monarch. Thus, medieval legal institutions were designed to deter disruption of land ownership patterns; these institutions included entailment, the "real writs," and the "uniqueness" of land in...