From use to law: the judicial recognition of community customary rights in Britain in the eighteenth and nineteenth centuries.

Abstract

The subject of the submitted works and synthesis is the history of the adjudication by the central courts of England and Scotland of legal claims that local custom, established by community praxis, creates legal rights over land that inure to the fluctuating members of local communities. The thesis of the submitted works, to paraphrase E.P. Thompson, is that custom litigation lies at the interface between law and community praxis. Customary rights are created ‘in fact’ by the praxis of a community, but once contested are recognised as creating ‘local law’ (England) or ‘legal rights’ (Scotland) by the courts. The submitted works explore this interface. The synthesis begins with an examination of the literature on custom in English and Scots law and explains the development of the published works with reference to this literature and their contribution to the development of it. The synthesis goes on to explain how the English law of custom and the Scots law of community servitudes constitute a single subject. A doctrinal and functional comparison is made between the English law of custom and the Scots law of community servitudes. Using evidence drawn from court decisions and the Session Papers, the use of the English law of custom in community servitude cases in both pleadings by Scots advocates and judicial decisions of the Court of Session and the House of Lords is demonstrated. The synthesis argues that the reception of custom is an iterative process and examines how the method adopted in the three works on Scots law reflects this thesis. The development of legal archaeology from method to methodology is explored, as is the significance of the method for both the published works and the synthesis. Once community praxis reaches the courts, it is mediated by legal doctrine, legal process and procedure, legal professionals (both lawyers and judges) and extra-legal events. The synthesis concludes that the central argument that underlies both the submitted works, and the methodology employed to produce them, is that the reception of customary rights is a process not an event.