ABSTRACT
A discussion on the right to landscape necessitates a clarification of what kind of rights one means, and what sort of landscape. The European Landscape Convention, which addresses democratic access to landscapes, defines “landscape” as “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors” (Europe, 2000: I.1.a). “Perception” is at the heart of this definition and will shape the debate on rights. When the land in landscape is perceived to have the qualities of a property defined in space, discourse will tend to revolve around individual property rights, territorial rights, ownership rights and economic value. If, on the other hand, the land in landscape, is perceived to be a place, shaped as an area for use by individuals and communities, then discourse can be directed towards customary use rights, which are fundamental to common law (Olwig, 2002: 3-24). Custom is foundational to legal rights in Britain and most of the many places colonized by the British, and it is part of the legal and moral value systems of most other societies. Custom nevertheless leads a subaltern existence because it is rooted in unwritten practice and use rather than in property ownership, and because it is confused with “tradition,” which generally does not carry legal rights (Thompson, 1993; Olwig, 2002: 3-42).
