Saturday, February 21, 2015

Customary law in the USA?

From a New Jersey paper, The Montclair Times for Thursday, Feb. 19, 2015, an article titled “Squatter’s rights case dismissed” (by Andrew Segedin, a staff writer for the paper): This article reports a lawsuit filed by a squatter who had occupied a vacant house and now sought to prohibit others from disturbing his peaceful occupation. The plaintiff says in his complaint:

Noble Drew Ali stated that ‘The Moors were living up and down the Mississippi River before the Europeans came here’ …. Whoever my ancestors were, I am today and whatever they owned I own according to specific laws of inheritance. Furthermore, under the inheritance laws this land sits on the parallel … which is sacred to my ancestors, therefore I own the before-mentioned land.

Not surprisingly, the federal court in which the plaintiff filed this lawsuit dismissed it. Apparently the property in question had been foreclosed on, and was empty when the plaintiff moved in. It’s possible that this case, seen in a broader economic lens, is an illustration of the impact of the mortgage crisis; one owner losing his home, no one else ever buying it, and finally someone else, perhaps also facing housing problems, moving in.

But there’s a special twist here: the article reports that Montclair’s township attorney says “that similar cases involving ‘Moorish Americans’ have occurred across the nation.” According to a brief filed in the case, there have been “dozens” of these cases involving the “Moorish Science Temple of America.”

What’s most striking about this, to me, is that the Moorish American argument is framed as a legal argument, invoking “specific laws of inheritance.” The formal law of the land doesn’t acknowledge these laws’ existence, and in that sense they are an elaborate fiction. But it is very interesting that those making these claims assert that they are legal claims, much as another extreme group, the “sovereign citizens,” do. It seems that in the United States today, the language of law is so powerful that even those who seek to disregard many of the duly enacted laws still present their positions as based in law too.

One more thought: how can they just make up law? Well, actually making up law has a long and continuing history. One term for this way of creating law is “customary law.” Many nations rest in part on customary law; South Africa, for instance, recognizes in its constitution that customary law is in fact law. To some extent, the entire world rests on customary law, in the form of those provisions of international law which, though never enacted by treaty or otherwise, have acquired the force of law by universal consent. So the impulse to create law is not at all unusual. And what’s oddest of all is that since customary law is the law of custom, if these invented legal provisions ever become truly customary, then they might well be law after all.

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