Burke's Doctrine of Prescription Says Old Institutions Deserve a Hearing

Every few years a fresh committee of experts discovers that some ancient institution makes no sense. The jury of twelve ordinary people? Inefficient. The two-house legislature? Redundant. The family dinner, the Sunday sabbath, the town meeting, the requirement that a constitutional amendment win three-quarters of the states? Relics. The committee draws up a better plan on a whiteboard, and the plan is elegant, and the elegance is the problem.

Edmund Burke had a word for the answer to that committee: prescription. It is one of the least understood ideas in conservative thought and one of the most useful. Prescription holds that an institution which has lasted a long time carries a presumption in its favor, because its survival is evidence that it solves problems that no planner, however brilliant, could list in advance. The presumption can be rebutted. It cannot be ignored. Here is the argument, the history of the word, and the strongest objection, answered.

Where the word comes from

Prescription is not a poet's word. It is a lawyer's word, and Burke chose it on purpose.

In Roman law, the doctrine called usucapio, already present in the Twelve Tables, allowed a person who had possessed a thing in good faith for a set period to become its owner. Later Roman law added praescriptio longi temporis, a defense based on long possession. The logic was practical. After enough time, the evidence of original title decays: witnesses die, documents are lost. A society that let every ancient title be reopened would be in permanent litigation. Long, peaceable possession was itself taken as evidence of right.

English common law adopted the idea. Rights of way and other easements could be claimed by prescription if they had been enjoyed since "time immemorial", a phrase the Statute of Westminster of 1275 fixed for certain purposes at the accession of Richard I in 1189. Parliament later shortened the periods in the Prescription Act of 1832. American law carries the same principle in adverse possession and in statutes of limitations: after enough time openly asserted and not challenged, a claim settles.

Burke's move was to apply this property-law idea to government. If long possession is evidence of a good title to a field, long existence is evidence of a good title to an institution.

Burke's 1782 speech and the Reflections

Burke made the argument most directly in a speech to the House of Commons on May 7, 1782, opposing a motion by the young William Pitt for a committee to inquire into the state of parliamentary representation. Reformers argued that the old system of boroughs was irrational, and in many ways it was. Burke answered not by defending every borough but by explaining what kind of thing the British constitution was:

Our constitution is a prescriptive constitution; it is a constitution whose sole authority is, that it has existed time out of mind.

He went on to say that prescription is the most solid of all titles, not only to property but to government, and that there is a presumption in favor of any settled scheme of government against any untried project, that a nation has long existed and flourished under it.

Eight years later, in Reflections on the Revolution in France (1790), he deepened the point. Watching the French National Assembly abolish one ancient institution after another, he explained why the English had preferred to treat their liberties as an inheritance:

We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations, and of ages.

That sentence is the epistemology of prescription. No single mind, and no single generation, knows enough to redesign a society from scratch. The institutions that have survived contain knowledge their designers never wrote down, knowledge earned by trial and error across centuries. Throw them out and you throw out the knowledge with them.

The argument, in order

Set out as premises, the doctrine runs like this.

1. Social problems are more numerous and more subtle than any planner can list. A marriage law, a jury rule, a system of local government each addresses dozens of problems at once, some of them invisible until the institution is removed.

1. Institutions that fail to address those problems tend not to last. People abandon, evade or overthrow arrangements that do not work. Survival over generations is a test, crude but real, that an institution is meeting needs, including needs nobody articulated.

1. Therefore long survival is evidence of usefulness, even when the usefulness is not understood. This is the same logic by which we trust a language, a common-law rule, or a market price: no one designed them, and they encode more information than any designer could, as Nobody Designed the English Language, and Hayek Called That Spontaneous Order explains.

1. Therefore the burden of proof falls on those who would abolish an established institution, not on those who would keep it. The reformer must show not only that the old arrangement has flaws, which all human arrangements have, but that his replacement will do better at all the things the old one did, including the things he has not noticed.

1. The burden can be met. Prescription is a presumption, not a prohibition. Where an institution is shown to be unjust, or to have outlived the conditions that made it useful, reform is not only permitted but required.

The sentence of Chesterton's that conservatives love to quote, that you should not take down a fence until you know why it was put up, is a homely restatement of premise four. Chesterton's wider point about tradition as a vote for the dead is developed in Chesterton Called Tradition the Democracy of the Dead, and He Was Right.

Prescription is not inertia

A lazy reading of Burke turns prescription into "never change anything". That reading is wrong, and Burke said so in the Reflections itself:

A state without the means of some change is without the means of its conservation.

Burke spent much of his career as a reformer. In 1780 he introduced a plan for "economical reform" to cut the royal patronage and sinecures that let the Crown buy votes in Parliament. He spent years pressing for relief for Catholics in his native Ireland. He led the impeachment of Warren Hastings, the governor-general of Bengal, for abuses of power in India, a trial that began in 1788 and dragged on until 1795. He defended the American colonists in the House of Commons in 1774 and 1775.

So the difference between prescription and inertia is the difference between a presumption and a wall. Inertia says, "This is how we have always done it, so stop asking." Prescription says, "This has lasted, so before you change it, find out what it does, and change it in a way that keeps what works." Burke's own image was inheritance: the idea of inheritance furnishes a sure principle of conservation and a sure principle of transmission, without at all excluding a principle of improvement. A good heir repairs the house. He does not burn it down because the kitchen is old. The broader myth that conservatism means opposition to all change is taken apart in Tradition Is Not Nostalgia, and Five Other Myths About Conservatives.

The American framers practiced exactly this kind of reform. In 1787 they did not invent a government from nothing. They kept bicameralism, the common law, the jury, the writ of habeas corpus, the colonial habit of elected assemblies controlling the purse, and the English tradition of a written charter of rights. What they changed, they changed for stated reasons. Then they made the new Constitution hard to amend, through Article V's requirement of two-thirds of both houses and three-fourths of the states, so that it would itself acquire a prescriptive weight. Madison worried in Federalist 62 that laws changed too often lose the respect of the people, as Federalist 62 Warned That Mutable Laws Betray a Free People explains, and in Federalist 49 he warned against frequent appeals to the people to revise the constitution, because they would deprive the government of the veneration that time bestows on everything.

The strongest objection: prescription would have protected slavery

Here is the hardest case, stated as fairly as I can state it.

"If an institution's survival creates a presumption in its favor, then slavery deserved that presumption more than almost anything. It was older than Christianity. It existed in Greece, in Rome, in Africa, in the Islamic world and in the Americas. It was embedded in law, in property, in the economy of entire regions. By Burke's own logic, reformers who wanted to abolish it bore the burden of proof, and the defenders of slavery in America used exactly this kind of argument: the institution is ancient, it is woven into society, abolition would cause chaos, leave it alone. Prescription is a doctrine for the powerful. It protects whatever exists, and what exists usually benefits those who already have the most."

That is a serious charge. Here is the answer, in five parts.

1. Prescription is a presumption, and presumptions are rebuttable. Premise five is not a loophole; it is part of the doctrine. The presumption in favor of an institution can be overcome by evidence that it works grave injustice. Slavery was the clearest case in history of an institution whose injustice could be demonstrated: it denied the humanity of the people it held. The burden of proof was met many times over.

1. For Burke, prescription operated inside the natural law, not above it. Burke never taught that whatever lasts is right. He taught that lasting institutions deserve to be understood before they are destroyed, within a moral order that he held to be eternal and binding. An institution that violates the moral law has no prescriptive title, just as long possession of stolen goods by a thief who knows they are stolen does not make them his.

1. Burke's own record answers the charge. He opposed the slave trade. In 1780 he drafted a detailed plan, later called the Sketch of a Negro Code, for regulating slavery and the slave trade with the aim of eventually ending them, and in 1792 he sent it to the government minister Henry Dundas. His method was gradual, which modern readers find frustrating, and some abolitionists of his own day thought it too mild, but his aim was an end to the system. A man who used prescription to defend slavery would not have drafted a plan to end it.

1. The American record follows the same line. The framers, many of them slaveholders, refused to write the idea of property in men into the Constitution, as Madison Kept the Idea of Property in Men Out of the Constitution's Words shows, and Article I, Section 9 allowed Congress to end the importation of slaves after 1808. Congress did so, effective January 1, 1808. Abraham Lincoln's argument at Cooper Union in 1860 was a prescriptive argument turned against slavery: the Founders, he said, had marked slavery as an evil not to be extended, and the true conservative was the man who adhered to that old policy, not the radical who wanted to spread slavery into new territories.

1. The alternative has a worse record. Revolutionary rationalism, the doctrine that institutions have no claim on us unless a theory approves them, did not free anyone in France. It produced the Terror. In the twentieth century it produced regimes that abolished property, religion and family in the name of a plan, with catastrophic results. Prescription's error, when it errs, is excessive caution. Rationalism's error is mass destruction.

The objection proves that prescription must be held together with a moral law above it. Burke held them together. That is not a weakness of his doctrine. It is the doctrine.

Prescription in American politics now

What does this mean for an American conservative?

It means that when someone proposes to abolish the Electoral College, pack the Supreme Court, end the Senate filibuster, or federalize the conduct of elections, the first question is not "Is the old arrangement perfect?" Nothing is. The first question is "What does it do, including the things nobody mentions?" The Electoral College, for example, does more than elect a president. It forces candidates to build coalitions across states and regions, it contains disputes within states, and it keeps the federal structure alive in the one election every citizen shares. Those functions were not all on anyone's whiteboard in 1787. They emerged, and they are part of why the system has lasted.

It means, too, that the conservative bears his own burden when he proposes change. Reform should be specific, explained, and designed to keep what works. That is the Burkean temper, and it is closer to a disposition than a program, as Oakeshott Said Being Conservative Is a Temperament Before It Is a Program argues.

And it means respect for the small institutions that carry the most unwritten knowledge: the family, the congregation, the local association. Those are the subject of Burke's most famous passage, read closely in The Little Platoons Passage From 1790 and What It Asks of Us Now. The misreadings of the man himself are corrected in Seven Myths About Edmund Burke That His Fans and Critics Both Repeat.

The case in brief

1. Prescription, borrowed from Roman and English property law, holds that long and peaceable existence is evidence of a good title.
2. Burke applied it to government in his 1782 speech on representation and in the Reflections of 1790: institutions that last carry knowledge no single mind possesses, so the burden of proof falls on those who would abolish them.
3. Prescription is a rebuttable presumption, not inertia; Burke himself was a reformer, and a state without the means of some change cannot conserve itself.
4. The objection that it would have protected slavery fails, because prescription operates inside the natural law, and Burke worked for the end of the slave trade.
5. Applied now, prescription asks every proposal to abolish an old institution to show what that institution does before it is torn down.

What you can do: before your state legislature votes on any change to how your elections, courts or local governments work, read the bill on the legislature's website and write your representative one question: what does the current rule do that the new one will not?