We agree the Charter of the Forest is important, but why it is matters

The Charter of the Forest was an accompaniment to Magna Carta and we entirely agree that it was an important document, the signing of it an important moment. The thing is, it's important in a manner rather different from the way in which some are celebrating it today. It really was the start of the English exceptionalism in law, economy and property. But, crucially, it wasn't the creation of commons that mattered, it was the delineation of what belonged to the state and what to individuals that did.

The Charter of the Forest, the lesser-known but equally significant twin of Magna Carta, asserted the rights of ordinary people to access from “the commons” the means for a livelihood and shelter, whether it was grazing their livestock, cutting wood for housing and fuel, fishing and hunting, creating water mills, or sharing the other resources of the forest. It restricted the rights of the king and nobles to privatise and exploit the forest while guaranteeing the rights of the commoners. It represented an early constitutional victory for ordinary people over a wealthy elite, and as such was hugely influential in the writing of other constitutions around the world. The battles in England continued of course, and waves of enclosures across Britain through subsequent centuries stripped away many of the rights.

But now a movement to restore them is growing. Guy Standing, a professor of development economics, is one of those calling for a new charter of the commons, re-establishing the right of the property-less to a basic income, affordable housing, energy and water, and common ownership or control of the means of providing it.

The important part of the Charter to grasp is that the King, and those aristocrats, weren't "the rich" they were, in that time and place, "the State." William the Bastard didn't just say that the throne belonged to him, he insisted that every inch of land and all upon it did. And went out and killed all who demurred. He was really very "Tutto nello Stato, niente al di fuori dello Stato, nulla contro lo Stato" indeed in a rather different and more proprietorial manner than the later "L'Etat, c'est moi." "L'état est à moi" perhaps.

This idea, that the "forest" and all in it continued to belong to the State, the King, is what the Charter overthrew in the time of his descendant, Henry III. Instead there were some things that did, others that were the inalienable rights of individuals. Sure, we might not think that pannage or scutage are all that important today but they are indeed the basis of property rights. 

Property rights being the very things which make market economies possible of course.  To use, as is being done, this example as justification for the commons is thus wrong, it's a justification for the assignment of property rights to people, not the State, with which the individual can then do as they wish within the law. That was all rather the point of it all.

This does indeed have modern implications:

Natural mineral resources are also part of the commons – and where extracting has a detrimental impact on the wider population, it is their interest that should prevail – whether it be leaving them in the ground to mitigate climate change or sharing the profits when appropriate. The Community Chartering Network has already scored a victory here, when its Falkirk group came together to draw up a charter of the communities’ commons assets and successfully opposed fracking for gas.

Oil gas and coal are all, in those mineral deposits, the property of the State today. The lesson of the Charter is that instead of these being vested in the Crown, as they are, they should be the property of those who own the land above and those who have rights to that land through tenancy etc. You know, as has actually been suggested might happen with fracking royalties distributed to those locals. As does actually happen under US law, as does happen with other minerals which are not Crown property. 

The Charter of the Forest distributed property rights away from the State and towards individuals. We agree that's important, we think we should be doing more of it but that isn't the lesson people are taking, is it?