Make the Law by Walking

Jessie Allen, School of Law, University of Pittsburgh

Book the Second, Chapter the Seventeenth. Of TITLE by PRESCRIPTION.

This chapter is about a legal doctrine that is easy to articulate and hard to believe: by using land for a long time as if it were rightfully yours to use, you acquire a legal right to use it. Prescription turns trespassers into stakeholders, while owners who have purchased or inherited their land through a flawlessly formal legal process lose the right to exclude them.  No wonder the students in my Property class are scandalized.

The right to exclude other people from your property is considered a crucial part of individual autonomy and a backstop against government tyranny. Yet under the common law doctrine of prescription, if you don’t intervene the folks who beat a path across your lawn day in and day out acquire a prescriptive right of way. Stop and think how perverse this is. One of the main reasons we have a legal system is supposedly so individuals don’t have to enforce their own rights.   Law enforcement takes over so that private citizens do not have to resort to force to protect what’s theirs and send us all back to the old “war of all against all.”   But with prescription, it’s use it or lose it.

Generally, when life and law face off directly, it’s the law that comes out on top. Law’s rituals – signed contracts, deeds of sale, jury verdicts – may be consistent with quotidian behavior or in conflict with it, but it’s understood to have priority – otherwise it’s not really clear what legality is, or what law is for. Sure every day life goes on its way heedless and often contrary to formal legal rules. But once it comes to formal legal action, once legal rules are invoked on their own terms and routines called to account, law masters, interrupts and shapes the relations and activities of everyday life. In fact law seems almost definitionally about this kind of interruption, these hesitations and callings to account – -from papers that must be signed to traffic signals that must be obeyed to the licenses we have to wait in line to obtain. There’s an annoying commercial on the sports radio station here in Pittsburgh about a local requirement to alert the gas company before putting in a new fence or foundation, with a jingle that captures the glitchiness of this legus interruptus: “Before you dig, call 811, it’s the law, call before you dig . . . .” There goes the law again, breaking up the flow, chopping life into little pieces with discrete edges that have to be arranged just so. You can’t just go about your business, putting in those fence posts – you’ve got to follow the law.

Prescription upends this order. Picture all these folks just shuffling along from here to there. Not only does the law not hold them up when they trespass on your land, not only do they get to keep on walking unless you take it upon yourself to stop them, but by walking they acquire a legal right to keep on doing exactly what they’ve been doing all along, which is, of course, breaking the law!

Blackstone is very clear that the property rights prescription creates are just legal as the rights that were disrupted. In fact, he makes a big deal in this chapter about the difference between prescriptive rights, which he classifies as personal legal rights and custom, which “is properly a local usage, and not annexed to any person. So, for example, there might be “a custom in the manor of Dale that lands shall descend to the youngest son, but if “Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege,” that’s a personal prescriptive right. II, p. 263 Another example of custom that he gives is “if all the inhabitants of the parish of Dale “may dance on a certain close, at all times, for their recreation.” Id. According to Blackstone, “this is strictly a custom for it is applied to the place in general, and not to any particular persons,” while, if the owner of the Manor of Dale “alleges that he and his ancestors . . . have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate.”Id. at 263-264.

Notice that functionally custom and prescription seem to convey the same opportunity to use property that is not formally your own. Any of the conduct Blackstone cites as customary could be allowed to someone via prescription, and vice versa. The manor owner could be dancing on the green under a prescriptive right and the villagers could be pasturing their sheep there by custom. The difference isn’t the kinds of activities allowed, or even, really, how people acquire the ability to keep on engaging in those activities, since both custom and prescription basically develop just by people living somewhere in particular and doing something in one particular way for a long, long time. The difference is the way we think about those activities.

There’s a kind of foreshadowing here, of H.L.A. Hart’s observation that obedience to law doesn’t just involve doing or not doing something but also what you think about what you are doing or not doing. As Hart pointed out, our concept of law entails recognizing a difference between habitual and law-abiding behavior.  An observer from Mars likely wouldn’t see much difference between someone stopping every day on the a street corner to adjust her hat and someone stopping there regularly whenever the light is red. But to those of us living in the culture of traffic regulation these two acts have quite different meanings. Stopping for hat adjustment is some kind of routine or maybe just a repeated accident, while stopping for the red light is obedience to law. Blackstone’s distinction between custom and prescription isn’t exactly the same as Hart’s contrast between habitual and law abiding conduct, because the idea of custom still seems to incorporate some sort of normative permission or even a kind of informal mandate, but the big idea is there: Law isn’t just about what people do, but also what they think about what they are doing. Dancing according to custom and dancing by legal right might look exactly the same, but the dancers don’t think they are doing exactly the same thing.

The crazy thing, of course, is that the legal rights Blackstone is contrasting with custom come about by erasing and reversing the line between habit and obedience, trespassing and lawful use. Prescription turns interlopers into rights holders, and makes law abiding performance out of daily routine, and a law violating routine at that. But maybe that’s the point. It’s not just that law depends on a difference between quotidian habit and formal rule following, but that law can transform one into another. And what better evidence of the ultimate power of the law than its ability to make legal rights out of the dross of everyday existence.

In the end, I think part of why my students are so irked and mystified by prescription is that even before coming to law school, they were steeped in a culture that puts belief before practice, planning before action, mind before matter. All their lives they’ve been taught to identify a goal and go for it – eyes on the prize! You dream big, discipline yourself, and work to fulfill the ideals you envision. That’s how they got into law school, for God’s sake. And now that they are here, they find that the dominant concept of law is a version of the same instrumental approach: law is figured as a tool for accomplishing social projects.

Prescription messes with that whole neat scheme. Prescription is like an intersection, a crossroads or a doorway between the ordinary moves of daily life and the meaning laden work of formal legal action. It’s a place where everyday life and the lives of every day folks enter into law’s work of regulating and constructing social structures. A place where the unscrutinized world of daily routine and the legal world of pregnant meaning meet and change places – where we discover that legal meaning comes from daily life as much as it controls and orders it, and that the potency of legal rights need not come from carrying out abstract concepts of universal human rights, or predictions of socioeconomic utility, but can materialize out of the ordinary human grind. As Bronislaw Malinowski said of Trobriand magic, it is “a primeval possession of man to be known only through tradition and affirming man’s autonomous power of creating desired ends.” Argonauts of the Western Pacific 75-76.

Originally published on August 16, 2015.