Wednesday, 25 January 2012

Get orf my lairnd!

Orjan's comment on my last post (sadly hijacked by the Smolensk issue) raises some valuable points that need further discussion in the ongoing debate about Polish-British cultural differences. His comment was in Polish, so an overview will be needed for the non-Polish speaking majority of my readers...

One interesting question that has yet to surface in British historiography is the influence of deportations to Australia on the long-term crime rate (comedian Alexei Sayle, being asked upon his first visit down-under by Australian immigration officers whether he had a criminal record, answered "Why - do you still need one?"). According to Wikipedia's sources, penal deportations to Australia went on for 82 years from 1786 to 1868 (82 years), depositing 165,000 convicts there. And before the USA won its independence, Britain dumped a further 60,000 convicts in penal colonies across the Atlantic. Whether this sustained onslaught on the nation's ne'er-do-wells left Victorian Britain a safer place for the building of low walls around houses is a moot point.

Now I will take the liberty here to translate the key paragraph from Orjan's comment:

"In Polish culture, there is a much broader concept of personal liberty, and also in its relation to other people's space. Besides someone else's ban on entry, there exists my own need to enter, does there not? Hence, a low wall is not culturally interpreted as 'crossing is forbidden', but as 'please, I'd rather you didn't cross' - in other words: "you're not allowed, but you can". By contrast, higher fencing gives the legal message integrated with a real obstacle: "you're not allowed and you can not".

This brings us back to that greatest of differences between British and Polish culture - common law vs. code-based law. The spirit vs. the letter of the law. The low walls embody the spirit, the high walls the chapter and verse.

But wait - there's another, quite paradoxical, difference between the landscape of Poland and the UK that requires explanation. In Poland, fields are not fenced off. And as long as you don't trample the farmer's crops, there's generally no gripe about you walking along the miedza between two fields. (As long as there are no dogs running loose.) In Britain, fields are enclosed. (See my photos of Derbyshire, here.) By hawthorn bushes and barbed-wire fences in the south, by stone-wall fences in Wales and the North (generally). Walkers must stick to marked (and mapped) public footpaths or bridleways. Failure to do so is regarded as trespassing; landowners take a dim view of people crossing their field and will bellow at them to 'get orf their lairnd'. Failure to do so may well result in a shotgun being fired into the air.

Which - when you think about it - is strange. Crime is far higher in urban Britain than rural Britain, as is unemployment. (Yes, there is livestock rustling going in Britain, something generally unreported in Poland). In general, however, while you are prevented by fencing from stepping foot on someone's agricultural land in Britain (you are not in Poland), you can walk off the pavement on most British streets and step right up to the front door of a house, and even push open the letter-box, without incurring any ill effect.

Where does that leave the British countryside? I believe that's a relic of the Enclosure Act of 1773 (with subsequent amendments), where landowners would use the law to turf peasant share-croppers off their land (that they'd farmed for centuries) and replace them with more profitable sheep.

And there you have it.

This time last year:
A Dream Too Far - part two

This time two years ago:
Electric in the dark

This time four years ago:
Elegant and proper


orjan said...


Neither common law nor code-based law. Desired is JUSTICE. That is true Polish gene instinct which perfectly reflects St. Augustine’s: Justice being taken away, what are kingdoms but great robberies?

Hidden or neglected this instinct is immortal here. You may bet.

This issue is crucial to understand any attitude towards law here.

basia said...

Interesting topic.
During my two visits to Wawa and Sulejowek, I was struck by the number of fences/"bramy" on the perimeter of private properties. A great many properties also had barking dogs of various sizes that made a quiet neighbourhood stroll impossible.

When I visited my cousin's newly built country home in Kepa Okrzewska, he told me that the property was still a work-in-progress because he had yet to build a proper "brama". Naively, I thought it was to keep his collection of small dogs (4) from running onto the road. He told me it wasn't to keep the dogs IN, it was to keep everyone else OUT. In idyllic Kepa Okrzewska he will go to the trouble and expense of building a brama? Seriously?? Where does such fear/paranoia come from?

As you know, I live in Toronto. Our front door is rarely locked; only overnight or when we leave the house. During the summer months, our front door is left wide open if someone is home.(Think Michael Moore documentary) Our attitudes are not that unusual.

It is extremely rare to find fencing of any kind enclosing a homeowner's front lawn in Toronto. Low hedges yes, especially on corner lots. Fences/walls no, unless the owner has a dog that needs to be enclosed. Toronto's crime rate is not low, but people don't obsess about their safety or security of their households too much.

Public land: Canada, with its wide open spaces, has a great deal of Crown land which is readily accessible and open. Private lands (fields and private woodlands) are respected and trespassing is not encouraged. Much like in the UK, special èasements have been created for hikers and walkers to tromp through the countryside.

The U.S.: a completely different kettle of fish. Lots of private land and fencing in wooded areas with prominent signs warning people to stay out or not trespass. These signs are taken VERY seriously. I suppose a strong gun culture encourages compliance.

Pacze Moj said...

I don't think basia has been to northern Ontario: lots of Crown land, little private land, lots of fences, even more signs (and quite a healthy gun culture)...

Still, many municipalities have by-laws about fences. The fences can't be in a certain place or, more often, can't be taller than x feet. I think the idea is that fences are ugly and that they somehow lower a sense of community (which, it follows, is a bad thing.)

I think fences and gates are wonderful. And it's not really because they keep bodies out, but because they keep eyes out. I know people who spend their Saturday afternoons lounging in their front yards, watching the street and gossiping about their neighbours. I hate doing that. I'd rather be in the back yard. It's fenced and I have privacy. I don't want to see the street or for the street to see me.

A low fence says, "This is mine. Don't cross. Don't look inside." But it allows crossing and it allows looking. A high fence says, "This is mine. Don't cross. Don't look inside." And makes it pretty difficult to cross and look.

Generally, the way I always figured it, fences have a cost and, if people have them, the benefit of the fence has to be greater than the money spent on building the damn thing. A low fence is cheaper than a high fence (of the same material, etc.) What has value?

(1) Privacy

They can't see me, I can't see them.

(2) Clear boundaries

It's clear where public land ends, where adjoining private land ends and where my land begins. If there's a fence and someone crosses that boundary, the assumption has to be that that person's crossed on purpose. And I don't mean masked men with guns. I mean pooping dogs and loud, trample-footed kids. Or just friendly neighbours who want to come in and talk. I don't want to talk. I want to sit in as much quiet as possible and read a book.


Pacze Moj said...

(3) The law

Common law regards possession as intent to possess, a degree of actual control and the desire to exclude others. A fence is evidence of that desire to exclude. It, therefore, strengthens your position as possessor.

Moreover, trespassing is usually a tort, not a crime. In other words, it's a private action where you sue someone for damages. What is the tort of trespassing?

It varies by jurisdiction but, in most places, it has to be intentional. The American Restatement of Torts, for example, says that accidental entry onto someone's land is not trespass unless the person fails to leave after being asked. If you hopped a fence, it's hard to argue that you did it accidentally. If you scaled a fence, good luck.

And, unlike under most other torts, the landowner can usually get a nominal amount of money even if the trespass didn't cause actual damage.

So: The higher a fence, the less easily people can see into your yard (and you onto the street) and the stronger your legal position if someone comes onto your land. The boundaries are marked just as clearly if the fence is a foot high or 10 feet high.

In Ontario, we've also got something called the Trespass to Property Act, which is about exactly what it sounds. It's a provincial statute, so not criminal law, and fines go up to $2,000. Under the statute, there are certain types of land that can't be entered onto without it being a violation and others where you can't enter if there's adequate "notice". "Notice" comes in three forms: you can tell it or write it, you can put up a sign or you can use standard markings. (In fact, if you do drive around northern Ontario, you see these markings on trees and posts. They're especially visible on birches.)

Under that statute, the height of the fence wouldn't make a difference as long as you put up the right kind of "notice". But Ontario also has a tort of trespass and height can only work to your advantage there. In Ontario, it's in your common-law legal interest -- not your code-based legal interest -- to build a high fence.

PS: I don't get the point of keeping your front door open or unlocked. Yes, a fence costs money. I understand that someone may not have enough money to build a fence. I also understand that someome may enjoy the lack of privacy, so the fence isn't worth its cost, even if the person does have enough money to build it. But difference in the cost between closing and not-closing (and not-locking) a door is so minimal we can assume it's zero. Yet closing (and locking) is the only option with a potential upside. If everyday I cross a street and the street is so peaceful that only one car zoom past every hour, I'd still look both ways before crossing. I mean, why wouldn't I? The chance of me getting hit is small but greater-than zero, the cost of looking is zero; so I look.

Andrzej K said...

I promise not to mention the S word. The basic difference I suspect is that the British (being a mongrel race par excellence) have built up an extensive set of (unwritten) rules which make possible human interaction. The common law at its basis uses the test of what a reasonable man would consider reasonable in a given set of circumstances. Thus an Brit says thank you on an inordinate number of occassions. This is not just politeness but a sign that one has recognised the actions of another. I have been stopping at pedestrian crossing since I first passed my driving test. In England practically all pedestrians will acknowledge with a nod or a raised hand your kindness. In Poland this is still rare. The net effect is that whilst most drivers in England will in fact stop to let across a pedestrian, in Poland it does not occur to either party that a little piece of civility goes an awful long way to making life bearable.

I guess Poland is suffering from the dictates of liberum veto which hardly set a good example for the great unwashed.

On personal space it is notable that Brits, when talking to someone at a reception will stand apart, leaving a breathing space. The continentals in general stand much closer together. Just look at the reaction of a Brit when faced with constant encroachment by a continental, resulting in a St Vitus dance typical at many receptions.

As for barricades around houses in Poland this is one more factor standing in the way of the building of social capital.

And lastly no one, but a burglar would think of entering the back garden of a property in England. Front garden (front yard for Americans) is treated as a transition between public and private space, the back garden is private and requires an invitation to enter.

As the Poles say "co kraj to obyczaj".

Which is not to say that I find England perfect in any way shape or form. Otherwise I would have to check in to Tworki having spent 23 years in Poland. BUT I do miss English village pubs!!!

Andrzej K said...

PS, one negative side effect of the Polish barricades is the inability to pick up the post from the front door mat but rather having to remember where you put the key to the postbox only to find a sodden mass of letters caused by the osmosis of rain along junk mail which has been half posted into the letterbox.

On the junk mail maybe the answer is for the citizens to post the junk mail to the relevant retail outlet without postage. I guarantee that they would soon stop.

orjan said...

There is still a lot of misunderstandings I am afraid:

1) As a possible reason of fences Michael also recognises some fear of being invaded by strangers. Would you then, Michael, try to define in English a traditional Polish term: gościniec. Is there any term of such sense in English?
While term: droga is of exactly the same meaning as a road and means just a communication / transportation facility, the term gościniec means: from there our guests are expected. How do you like such distinction? Once predominant, the term gościniec is now of lesser language use. Anyway it shows different traditional attitude towards strangers who may come.

2) Pacze Moi pays attention to what is a result relation between fence and appropriate law. Such issues I usually like to illustrate with these scenes of American movies when intruder immediately turns back and gets lost on common housewife’s first words: I call the police spoken with her finger pointing on telephone handset.
Well… Polish police have more serious tasks and current Polish law (the code – law) has more serious interests than to secure common people in their common houses or to secure privacy of theirs. The Polish Supreme Court using all its wits has once explained this: “a state of law realises law not a justice”. A difference that counts and influences on attitude and on degree of respect that actual code-law deserves here.

3) Michael pointed out that there are no fences on agricultural land in Poland. The same applies to forests! One may walk freely providing the land is out of current cultivation, just after harvest, before soil is ploughed, etc. The same in winter when it is frozen and covered with snow. But on miedza one may walk and sit anytime. There also persists a common understanding that one may cross the land even among plants providing no harm to plants itselves is done. This, for instance, may apply to potato cultivation with these parallel rows between plants.

But discussing fences I should attract your attention, Michael, to traditional Polish saying szlachcic na zagrodzie równy wojewodzie as this may explain some cultural differences discussed here. This saying is often quoted just like that, without any understanding, sometimes just to show how weird Poles are.
Firstly note the meaning of the term used: szlachcic is equivalent to: a citizen while zagroda has a practical meaning of fenced farm or house.
Then let me say that the saying actually expresses a principle of personal freedom executed on private possession. The principle (and warning!) is: except the God, nobody can interfere into my will and into my rightful doings. Now, such freedom is understood to be performed not anywhere, not on a whole land possessed, but only in zagroda! This may explain why Poles instinctively love to have separate houses and love to have it fenced. Just because of this echo of zagroda with their instinctive need of personal freedom on their own.

PS. Please do not mock with my English as I have neither studied it regularly nor used it enough to get necessary practice. I use it just to understand English texts (i.e. passive).

White Horse Pilgrim said...

In many years I have only been told to leave land twice in Britain - both times by wealthy foreigners, and one of those times I was on a legal right of way. It is a great advantage that rights of way are enshrined in law - they can be kept open and someone is obliged to maintain them. If these things don't happen, there are means of redress. On occasions I have applied these to good effect. Brandishing a weapon let alone discharging it would bring the police straight out, and rightly so.

Whereas in Central Europe I have encountered marked hiking trails completely obstructed by man and storm, aggressive peasants and hunters threatening hikers (with weapons on a couple of occasions) and locals expecting bribes for the right to pass. Oh, and whole tracts of forest shut to everyone so that some official or other could shoot the livestock.

The tendency of Central Europeans to walk right into my house out there was disconcerting. I could quite understand somene wanting to take their cow to drink in the stream across my field, however I could be in the bath and someone would walk in, crack the door open and talk to me as if that was completely normal. On the other hand, I have walked into an employee's house and asked why he isn't at work, only for the wife to show me straight to the bedroom where the fellow was nursing a hangover.

Yes there has been a small problem with livestock rustling in Britain. Also theft of metal, railway cables, etc. Curiously these have coincided with the establishment fo large numbers of Central Europeans in the country, and some modes of theft look just like things I saw happen out east.