Prescription

Prescription, in both domestic and international law, the effect of the lapse of time in creating and destroying rights. Prescription is either acquisitive, in that an individual is allowed, after a specified period of time, to acquire title, or extinctive—i.e., barring for a period of time certain court actions (see limitation, statute of).

The concept of prescription goes back to the early Roman Empire, when a need arose for a system whereby provincial land, not held by civil title or acquired by usucapio (continuous possession over a period of two years), could still be “owned” after possession over a longer period of time, ranging from 10 to 20 years.

Initially, long-term prescription merely gave the holder a defense against suit for the land. Later it became acquisitive, and all that was required was good faith and title (even if acquired from a nonowner). Prescription continued in the Frankish period, but its form was not settled. In France, in the 16th century, possession over a period of 10–20 years in good faith and with title conferred ownership; 30 years was necessary without either.

These same rules continue in modern France, although with extinctive prescription there are many exceptions to the 30-year rule. In Germany, 10 years and good faith are required. In the United States, the term adverse possession (q.v.) is more common than prescription; even if the possessor has taken over land that he knows is not his, title will pass to him if he holds the land continuously for a period of 20 years.

Modern justifications of prescription are based on several considerations: the desire to avoid the difficulties of proof, which long-continued delay in the assertion of rights occasions; and the argument that long-continued use permits the inference of ownership, since right and use usually go together.

International law also has a concept of prescription; it recognizes a nation’s claim as valid by reason of long-continued assertion and a government’s authority as legitimate by reason of its continuation in power.

The term prescription is also used in some philosophical writing to describe what legal philosophers call custom—that is, long-continued usage or habit as a source of law. Edmund Burke referred to prescription, or custom, as the basis of law in order to refute the claim of supporters of the French Revolution that the source of law is the present generation.