The Theory of Prescriptive Possession

In one line

The theory of prescription says that an arrangement which has lasted long enough acquires a title from its own duration, so that asking how it began is no longer a permitted question.

In the wording a student can write in an exam: the theory of prescriptive possession holds that political authority is legitimated by long, uninterrupted and unchallenged enjoyment, so that a constitution or a government which has been accepted and obeyed over many generations acquires a title which does not depend on the manner of its origin, and which the present generation is not entitled to reopen.

The idea, and the word

Prescription, in law, is the acquisition of a right by long use, and its mirror image is limitation, the extinction of a right by long failure to assert it. A person who occupies land openly and continuously, as of right, for the period the law prescribes, acquires a title good against the world, and the true owner's right is extinguished. Nobody thinks this is an endorsement of trespass. It is a rule about what happens when a state of affairs has lasted long enough that unsettling it would do more harm than leaving it.

The political theory is the same idea applied to constitutions. If a government has been obeyed for centuries, its title comes from that, and the question how the first ruler acquired power is no longer a live one.

Edmund Burke, the theory's great exponent

Burke is the name to give, and his argument in the Reflections on the Revolution in France has four parts a student should be able to reproduce.

Society is a partnership across generations. It is a partnership not only between those living, but between those who are living, those who are dead and those who are to be born. That is why the present generation cannot simply cancel the arrangement: it holds the estate for others.

Prescription is the most solid of all titles. Long possession is not merely evidence of a title; it is a title, and Burke says it is the soundest one there is, precisely because it has been tested by time in a way that a paper theory has not.

Institutions carry latent wisdom. An arrangement that has worked for centuries encodes solutions to problems nobody now remembers, discovered by trial and error across many lifetimes. An individual reformer's reason, however brilliant, is a small stock compared with the accumulated stock of the ages.

Therefore reform, not reconstruction. Burke is not opposed to change; he supported the American colonists and attacked misgovernment in India. His objection is to demolishing an inherited constitution on the strength of an abstract theory, because the theorist can see what is wrong and cannot see what the arrangement was quietly doing.