Customary Rights in Scots Law: Test Cases on Access to Land in the Nineteenth Century

Abstract

Rights of access to land in Scotland for community and public use became increasingly politicised in the nineteenth century. In test cases brought by both landowners and access campaigners, they were subject to determination by the Court of Session. This article examines the doctrinal developments in the area of customary rights in nineteenth-century Scotland, and the legal and political context in which those doctrines emerged. The decisions were made against a background of reaction against the abuse of privileges by burgh governors and superiors, on the one hand, and the movement for greater public access to land on the other. It is argued that the judges of the Court of Session based their decisions, in part, on judicial values regarding the value of test case litigation and the constitutional function of the court, as well as the sanctity of private property.