'The Law of a Different Land': Colonisation and Crofting Commons in the Highlands and Islands of Scotland

Abstract

"Since its creation in British law in 1886, crofting has been recognised as a system of land tenure unique to the Highlands and Islands of Scotland. However, before and since the 1886 Crofting Act the area’s traditional landholding arrangements have been characterised as problematic and efforts made for their reform.

This article examines some of these externally-led reforms which have established crofting as a hybrid tenure system in which individual and collective rights are both present. Considering the 1886 Act pivotal, it begins by describing the introduction of crofting as a commercial intervention in indigenous landholding systems and shows how crofting tenure as state law was created both as a result of, and in resistance to, this intervention. Next, it examines further reform processes subsequent to the 1886 Act and concludes by analysing some key contemporary reforms.

The article employs two complementary theoretical perspectives. The first is to construe the reforms in terms of the two concepts recognised by Elinor Ostrom as being ideological prescriptions employed by outside actors to resolve so-called ‘tragedies of the commons’ – ‘privatisation’ and ‘Leviathan’. The putative ‘tragedies’ which external actors believe they have identified and seek to resolve are not linked primarily to resource depletion but instead to related ‘problems’ of economic inefficiency and social or cultural inadequacy. The cultural and economic motivations for repeated intervention in communal governance systems associated with the area’s indigenous Gaelic culture means the reforms should also be considered from the perspective of theories on colonialism and informal imperialism."