Beyond Blackstone: The Modern Emergence of Customary Law
David L. Callies & Ian Wesley-Smith
Modern laws are normally enacted by a legislature or developed by a judiciary. However, there has been another traditional source of social order throughout history—customs, which are “popular, normative pattern[s] that reflect the common understandings of valid, compulsory rights and obligations.”1 Although such customs and customary rights have long been part of the law applicable to land, water, and resources connected thereto, the Supreme Court of the United States’ decision in Lucas v. South Carolina Coastal Council2 has elevated the importance of custom by naming it as a potential defense to categorical takings claims.
4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 151 (2015)