{"id":3852,"date":"2020-08-12T12:41:19","date_gmt":"2020-08-12T16:41:19","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3852"},"modified":"2020-09-23T20:33:48","modified_gmt":"2020-09-24T00:33:48","slug":"make-the-law-by-walking","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/08\/12\/make-the-law-by-walking\/","title":{"rendered":"Make the Law by Walking"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second, Chapter the Seventeenth. Of TITLE by PRESCRIPTION.<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is about a legal doctrine that is easy to articulate and hard to believe: by using land for a long time\u00a0as if\u00a0<\/em>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. \u00a0No wonder the students in my Property class are scandalized.<\/p>\n

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\u2019t 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\u2019t have to enforce their own rights.\u00a0\u00a0 Law enforcement takes over so that private citizens do not have to resort to force to protect what\u2019s theirs and send us all back to the old \u201cwar of all against all.\u201d\u00a0\u00a0 But with prescription, it\u2019s use it or lose it.<\/p>\n

Generally, when life and law face off directly, it\u2019s the law that comes out on top. Law\u2019s rituals \u2013 signed contracts, deeds of sale, jury verdicts \u2013 may be consistent with quotidian behavior or in conflict with it, but it\u2019s understood to have priority \u2013 otherwise it\u2019s 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 \u2013 -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\u2019s 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\u00a0legus interruptus:<\/em>\u00a0\u201cBefore you dig, call 811, it\u2019s the law, call before you dig . . . .\u201d 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\u2019t just go about your business, putting in those fence posts \u2013 you\u2019ve got to follow the law.<\/p>\n

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\u2019ve been doing all along, which is, of course, breaking the law!<\/p>\n

Blackstone is very clear that the property rights prescription creates are just\u00a0legal\u00a0<\/em>as the rights that were disrupted. In fact, he makes a big deal in\u00a0this chapter<\/a>\u00a0about the difference between\u00a0prescriptive rights<\/em>, which he classifies as\u00a0personal legal rights<\/em>\u00a0and custom, which \u201cis properly a\u00a0local<\/em>\u00a0usage, and not annexed to any\u00a0person<\/em>. So, for example, there might be \u201ca custom in the manor of Dale that lands shall descend to the youngest son, but if \u201cSempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege,\u201d that\u2019s a personal prescriptive right. II, p. 263 Another example of custom that he gives is \u201cif all the inhabitants of the parish of Dale \u201cmay dance on a certain close, at all times, for their recreation.\u201d\u00a0Id.\u00a0<\/em>According to Blackstone, \u201cthis is strictly a custom for it is applied to the\u00a0place<\/em>\u00a0in general, and not to any particular\u00a0persons<\/em>,\u201d while, if the owner of the Manor of Dale \u201calleges 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\u00a0person<\/em>\u00a0of the owner of this estate.\u201dId. at 263-264.
\n<\/em><\/p>\n

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\u2019t the\u00a0kinds<\/em>\u00a0of 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\u00a0think\u00a0<\/em>about those activities.<\/p>\n

There\u2019s a kind of foreshadowing here, of H.L.A. Hart\u2019s observation that obedience to law doesn\u2019t 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\u00a0concept of law<\/a>\u00a0entails recognizing a difference between habitual and law-abiding behavior.\u00a0 An observer from Mars likely wouldn\u2019t 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\u2019s distinction between custom and prescription isn\u2019t exactly the same as Hart\u2019s 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\u2019t 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\u00a0look<\/em>\u00a0exactly the same, but the dancers don\u2019t think they are doing exactly the same thing.<\/p>\n

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\u00a0violating\u00a0<\/em>routine at that. But maybe that\u2019s the point. It\u2019s 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.<\/p>\n

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\u2019ve been taught to identify a goal and go for it \u2013 eyes on the prize! You dream big, discipline yourself, and work to fulfill the ideals you envision. That\u2019s how they got into law school, for God\u2019s 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.<\/p>\n

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\u2019s a place where everyday life and the lives of every day folks enter into law\u2019s 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 \u2013 where we discover that legal meaning\u00a0comes from<\/em>\u00a0daily 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 \u201ca primeval possession of man to be known only through tradition and affirming man\u2019s autonomous power of creating desired ends.\u201d\u00a0Argonauts of the Western Pacific<\/em>\u00a0<\/a>75-76.<\/p>\n

Originally published on August 16, 2015.<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second, Chapter the Seventeenth. Of TITLE by PRESCRIPTION. This chapter\u00a0is about a legal doctrine that is easy to articulate and hard to believe: by...<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,79,492],"tags":[132,200],"class_list":["post-3852","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-news","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-108","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3852","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3852"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3852\/revisions"}],"predecessor-version":[{"id":3853,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3852\/revisions\/3853"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3852"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3852"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3852"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}