August 10, 2006
Duhl on Property and Custom
Gregory M. Duhl (University of Tulsa - College of Law) has posted Property and Custom: Allocating Space in Public Places on SSRN. Here's the abstract:
Custom predates Sir William Blackstone as a source of formal property rights in the English common law. But courts in twentieth-century America have rarely applied the doctrine of custom, and when they have done so, they have used Blackstonian custom inappropriately as a justification for recognizing public rights to private property. But despite the cry of some scholars, custom is not dead.
Custom offers a justification to protect rights of private individuals to public property, such as those of the lunch truck and cart vendors around the Temple University campus to their parking spaces, squatters to their shelter, and the rights of New Mexicans to the water in acequias. Such informal property regimes often adopt and enforce communitarian practices and usages, or social norms, and, in doing so, increase efficiency and egalitarianism. Courts and legislatures should not interfere with those regimes, and should use positive law, when necessary, to protect them. Doing so affirms democratic institutions and reduces individuals' reliance on the state and positive law for social justice.
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