Customary land law typically refers to customary land tenure, a term indicating the relationship a society has created with respect to the use and ownership of real property. It often comes about through traditional practices within a community such as passing land down through inheritance or the practice of sharing common ground for grazing cattle or other farm animals.
The term customary is used in this context of societal land use and division and may become part of land law as the community grows larger, more diverse, and less likely to remain on a piece of land for generations. Land law may also be put into place as an area becomes urbanized with more common areas kept up with moneys from taxation.
Part of the movement from customary land tenure to land law occurred to address the intersecting interests that grew around land and its use as humans demanded a more sophisticated framework for regulating behavior.
Intersecting Interests
Various interests may collude or collide depending on the use of the land each party has in mind.
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Overriding interests: sovereign power can be used to allocate or appropriate land.
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Overlapping interests: several parties are accorded different rights to the same parcel of land but the rights do not touch. This includes mineral leases, rights of way, etc.
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Complementary interests: more than one party has the same interest in the same piece of real estate. This goes directly back to practices such as communal grazing areas.
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Competing interests: Somewhat self-explanatory, this means different parties have different ideas of what to do with the same piece of land.
Competing for Resources
Customary land tenure can end in land law if there is competition for local resources. Each party then has a specific reason for wanting to keep others off of land they wish to possess because of scarce resources. Customary land tenure won’t hold up in modern society where going to war over your neighbor’s encroachment on your property and your resources. Instead a rule of law is created, generally in an effort to keep things fair.
Population Growth
Jared Diamond, author of “The World Until Yesterday” theorizes that community rule can only last as long as the community remains small and the members must get along with one another because of proximity. As the population grows and becomes more mobile, common law often takes over from customary law.
This is likely true of customary land tenure as well. Land law can be influenced by customary practices but as people have less contact with each other the rule of law begins to apply. When the community was small a settlement could be worked out to the satisfaction of the community. When the community becomes large, this becomes less practical.
A Global Practice
Customary land tenure is still practiced in some areas including the United States. Native American lands are typically ruled by customary land tenure. In Africa, Asia, and other countries and continents with large tracts of land that are not under the administrative control of a government, customary land tenure is still the local tendency. Sometimes it continues despite the presence of land law, simply because the area is inhabited by a people who have, well, customarily dealt with property that way.
Summary
Customer land tenure works well for smaller communities as does community or societal rule of other behaviors. As the population becomes larger, more diverse, and more mobile, the more likely it is that land law will take over.
