A notable feature of the contemporary evolution of property law has been an increasing recognition of public entitlements of access to wild or scenic natural landscape. The right to traverse someone else's land for recreational purposes is one component of what some have called ‘pedestrian democracy’. The following pages trace the origin of liberalizing developments in this area, relating these innovations to the paucity and fragility of pre-existing entitlements of recreational user. But can it now be said that there exists a human right of access to nature? This article addresses some of the arguments that might underlie such a claim. It explores the nexus between moral landscape, aesthetic experience, personal and psychological well-being, social equity, citizenship and environmental responsibility. The paper draws upon convergent themes in law, literature and landscape theory in order to identify the ‘geography of hope’ which Wallace Stegner famously associated with the proximity and accessibility of raw earthscape. The article concludes by suggesting that the modern paramountcy of environmental obligation is beginning to import a correlative human right to engage more closely with the natural world and to enjoy access to the regenerative benefits afforded by wild and open spaces.
Kevin W. Gray
In this chapter, I develop an alternative framework for a critical theory of international law. Critical theorists have previously attempted to develop a theory of international law which began from the concern that the development of international law has led to the fragmentation of the international legal order. Inspired by the Habermasian view that legitimate law emerged, as a historical phenomenon, alongside the rationalization of the state, critical theorists have been reluctant to theorize the conditions of legitimacy of a global order where constitutionalization and democracy do not obtain. They have instead argued for constitutionalization as a means of assuring international law’s legitimacy. I argue that a critical theory of international law should not depend on the existence of a constitutional order, but could instead begin from a fragmented legal order and involve means of legitimation separate from those normally invoked to explain the legitimacy of the nation-state.