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Autumn 03
What did the
Vikings
ever do for us?
Well they were a lot more generous in their beach
ownership laws, says Derek McGlashan.
burning, raping and pillaging,
they weren’t averse to a legal
system, and some of their laws survive
today. The Vikings used their laws to rule
many Scottish islands, dominating most
strongly in Orkney and Shetland. But
about 500 years ago, Orkney and
Shetland came under Scottish rule. This
meant that there were two different legal
systems, Viking and Scots. Viking, or
udal, laws of property and ownership still
exist in parts of Orkney and Shetland.
Udal law is very
different from the
Scots system of
property ownership,
called feudal law.
And it can get very
complicated when it comes to beaches, so
pay attention.
Viking and Scottish legal systems
both use tidal levels to define the amount
of coastal land someone can own. The
tide comes in and goes out (usually twice
a day), but each time it reaches a
different level on the beach. We can
predict this, as the tides follow a series of
cycles between spring tides (the highest
high tides and lowest low tides) and neap
tides (the lowest high tides and highest
low tides).
Under Scots law, private landowners
can generally only buy land to the
average level of the spring high tides (the
highest high tides). But, under Viking
laws, they can buy land down to the
lowest level the low tide is predicted to
reach in any year (the lowest astronomical
tide).
Under udal law, private landowners
own the whole beach. But under feudal
law, they only own the very top of the
beach. Most of the beach is legally
defined as the foreshore, under Scots law
the Crown usually owns this. Scots law
considers the lowest part of the beach to
be seabed, and the Crown owns this too.
Therefore, under udal law, the landowner
owns the entire beach, whereas under the
feudal system, the Crown owns most of
the beach.
If you were in Orkney or Shetland
and wanted to speak to the beach’s owner,
who would you contact? Well, since the
14th century, some udal land has been
sold to the
Crown, and
maybe, sold on
again. This
changes the land
from udal to
feudal, which means that even if the land
is in Orkney or Shetland, the feudal
system applies to it.
Does this matter to anyone? In short,
the answer is yes, especially in matters
environmental. Scottish Natural Heritage
(the government conservation body) can
only designate most conservation sites to
the edge of the seabed (the seaward limit
of the foreshore). Under udal law, the
private land extends to the level of lowest
astronomical tides. This is further out to
sea than the foreshore extends under the
feudal system. Therefore, under udal law,
Scottish Natural Heritage could define
their conservation sites down to the level
of lowest astronomical tide, making these
conservation sites much larger. At the
moment though, Scottish Natural
Heritage uses the feudal system of
boundaries even if the land is udal. They
could designate a lot more land as
conservation sites if they applied udal law
in the right places.
But then maybe they’re using
Ordnance Survey maps, which have to
show the position of the foreshore. In
Orkney and Shetland, these are produced
showing feudal boundaries, not udal.
This suggests that the Ordnance Survey
may not be fully meeting its map-making
obligations.
And what happens if you want to
develop the foreshore and seabed?
Generally, if you want to build a pipeline
across the seabed or foreshore, you need
permission from the Crown. In Orkney
and Shetland, you may also need
permission from individual landowners.
You can see that from an
environmental perspective, it’s all very
complicated, and we have the Vikings to
thank for that.
‘
Under Udal law, landowners own
the whole beach. Under feudal
law, they only own the very top.
’
Derek McGlashan is completing his PhD
on the interaction between dynamic
coasts and legal systems in Great Britain,
funded through the ESRC/NERC
interdisciplinary Research Studentship
Scheme.
For more information:
McGlashan, D.J. (2002) Udal Law and
Coastal land Ownership. Juridical
Review. 2002, Part 5: 251-260.
www.dundee.ac.uk/geography/s008.pdf
Derek McGlashan, Geography
Department, Dundee University, Dundee,
DD1 4HN. d.j.mcglashan@dundee.ac.uk
23
W
hen the Vikings weren’t
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