David J. Bederman, Public Law and Custom

• Citation: Vol. 61
• Publication year: 2012

THE BEDERMAN LECTURE ON LAW AND JURISPRUDENCE

PUBLIC LAW AND CUSTOM

David J. Bederman*

Law professors love puzzles. Give us a legal doctrine that does not make sense, or appears counterintuitive, or does not appear to comport with some methodological assumption, and we can spend months (if not years) plumbing its depths and producing reams of paper in exploring its contours. The good news today is that my exegesis shall be limited to the length of this lecture. Let me first set out the character of the puzzle and see if I cannot solve it in the time allotted.

1. THE PUZZLE

   
   

   Today’s puzzle can be simply stated: can public law rules be made or modified by custom?

   
   

   At the outset, let us define some terms. By “custom,” I mean legal rules which are “unofficial” and “unenacted” inasmuch as they do not receive their sanction from a statute adopted by a duly constituted legislature or from a decision handed down by a judge of a court of competent jurisdiction. Custom is simply the practices and usages of distinctive communities. One peculiarity of the modern law school curriculum is that we do not give much reflection to the sources of law in contemporary legal culture, and law students reflexively assume that all law must be derived from a legislature passing statutes or judges deciding cases. In short, we implicitly train law students from virtually their very first day of studies that law is a top-down social construct, consistent

   with John Austin’s vision of authoritative commands.1 Custom, by contrast, is

   
   

   * K.H. Gyr Professor in Private International Law, Emory University. This text is adapted from the author’s lecture on the same subject, held on September 26, 2011, as the inaugural Bederman Lecture on Law and Jurisprudence. The author thanks all those whose generous support made this ongoing lecture series possible (along with a traveling fellowship for Emory Law students to attend the Hague Academy of International Law). The material presented in this lecture is drawn from the author’s Custom as a Source of Law.

   1. See 2 JOHN AUSTIN, LECTURES ON JURISPRUDENCE 536 (Robert Campbell ed., London, John Murray

      5th ed. 1885); JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 30, 163–64 (Isaiah Berlin et al.

      eds., Weidenfeld & Nicolson 1954) (1832).

      a bottom-up dynamic, where legal rules are being made by the actual participants in the relevant legal community.

      
      

      “Public law” is the domain of legal relations dictated by the state. It stands in contrast with what we call “private law,” the ordering of affairs between individuals in contract, tort, and property—the bedrock of the first-year law school curriculum. The core of public law is often viewed as administrative, criminal, and constitutional law. But the boundaries between public and private law are increasingly being blurred. As the terms of more and more private relations are being dictated by government action—say, a statute that imposes a limit on how much interest can be charged on a loan or a regulatory scheme that governs communications between banks and individual credit-card holders—the domain of purely private law may be shrinking. I doubt that proposition, but that is an issue for another day—and another lecture. In any event, public law norms are those sets of rules at the heart of any polity. And while not all public law norms are “rule[s] of recognition,” in the sense that the

      eminent legal scholar H.L.A. Hart employed,2 the dictates of public law would

      seem to have a higher stature—or, at a minimum, a different character—than those of private law relationships between individuals.

      
      

      Many prominent legal theorists have asserted that even if custom should be recognized as a source of legal obligation, there are limits to its domain, and one of these is that customary norms cannot remake public law. James Coolidge Carter3 and T.F.T. Plucknett4 both contended that custom cannot

      change public law. Plucknett’s assertion was made as part of his great survey of the English common law; Carter’s discussion was in relation to what he viewed as an ideal legal system. So, the notion that custom can have no effect on public law rules has been stated as both a matter of description in legal history and a preferred norm in the design of legal systems. There are many skeptics of custom as a source of law. Within this group, most are adamant that public law is just too important to be influenced by customary lawmaking processes.

      
      

      Both the descriptive and normative claims of those that would refute a role for custom in public law are quite wrong, and the goal of this lecture is to tell you why and how. Indeed, I will accomplish this jurisprudential feat without

      
      

   2. H.L.A. HART, THE CONCEPT OF LAW 100–10 (2d ed. 1994).

   3. See JAMES COOLIDGE CARTER, LAW: ITS ORIGIN GROWTH AND FUNCTION 120–21 (1907).

   4. See THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 307–13 (Little, Brown & Co. 5th ed. 1956) (1929).

      reference at all to the role of custom in public international law—that set of norms governing behavior between actors in the international community. And while it might be strange for an academic whose primary area of study is international law to preclude examples from his chosen field, for the purposes of today’s lecture, I am content with confining my proofs to examples drawn from domestic law. Indeed, to use international law to make my case that custom can create public law is a bit like shooting fish in a barrel. Legal lectures ought to have some creative tension; there should be some uncertainty as to whether the speaker can really be held to his proofs and make his case. Doubt me, and let me persuade you.

      
      

      Public law rules have historically been made and modified by custom. This is nothing new. But, just as significantly, I would argue here that significant advantages accrue for those legal systems that allow public law norms to mutate in response to the needs of their polities, irrespective of the constitutional or administrative impediments to their creation. In other words, bottom-up lawmaking for public norms—based on the consistent experience and acquiescence of participants in that legal system—is an appropriate mechanism for change. To explore these propositions, I will look at doctrinal examples drawn from sources as varied as the common law of property in Oregon, family law in South Africa, and separation-of-powers principles in United States constitutional law.

      
      

2. OREGON, BEACH ACCESS, AND PROPERTY RIGHTS

   
   

   In the United States, there is a constitutionally entrenched guarantee to property rights.5 A key question for “takings” jurisprudence—a public law doctrine rooted in our constitutional law—is whether an essential property right has been confiscated by the government or regulated in such a way as to deny the property owner all use of his property. As the U.S. Supreme Court

   observed in the 1992 landmark decision of Lucas v. South Carolina Coastal Council:

   
   

   Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title

   
   

   1. See U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without just compensation.”).

      to begin with. . . . [A state] must identify background principles of nuisance and property law that prohibit the [landowner’s] uses 6

      
      

      So here we have the nub of the problem: does a public easement, created by custom of (assumptively) long-standing character, but only first recognized by a court much more recently, become part of the state’s “background principles of . . . property law”? If the custom has merged with those principles, a property owner never had the right to build on her land in a way that interfered with the public’s rights. In short, the state took nothing when it regulated consistent with the custom. But if the custom only adheres at the time it is first positively recognized in the public law—through a judicial precedent or statute—then the owner’s right to build had vested, and she should be entitled to just compensation if the state purports to later bar improvement of her property.

      
      

      Courts in Oregon have radically transformed the English common law doctrine of local custom in property. That doctrine, as best exemplified in William Blackstone’s Commentaries on the Laws of England, allowed for the imposition of an inchoate servitude on land within a particular locality upon

      proof of an exacting set of conditions.7 This customary servitude was

      announced for the first time in Oregon law in the 1969 decision of State ex rel. Thornton v. Hay.8 The Oregon Supreme Court, in delocalizing customary easements and applying them to all beaches in the state, was obliged to reformulate Blackstone’s doctrinal elements, particularly to overcome the limiting factors of antiquity, certainty, and reasonableness.9 That court offered this paean to custom:

      
      

   2. 505 U.S. 1003, 1027, 1031 (1992). I should disclose that I served as counsel to David Lucas in the Supreme Court, as well as to Jeanette Stevens in the Cannon Beach case, discussed below. See infra notes 13– 23 and accompanying text.

   3. See 1 WILLIAM BLACKSTONE, COMMENTARIES *74–78.

   4. 462 P.2d 671, 676 (Or. 1969) (“Because many elements of prescription are present in this case, the state has relied upon the doctrine in support of the decree below. We believe, however, that there is a better legal basis for affirming the decree. The most cogent basis for the decision in this case is the English doctrine of custom. Strictly construed, prescription applies only to the specific tract of land before the court, and

      doubtful prescription cases could fill the courts for years with tract-by-tract litigation. An established custom, on the other hand, can be proven with reference to a larger region. Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly.”).

   5. See id. at 678 n.6...