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Property and Collective Undertaking: The Principle of Numerus Clausus

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

August 18, 2010

University of Toronto Law Journal, Forthcoming

Property rights are subject to the principle of numerus clausus, which is a restriction that means that it cannot be up to the contracting parties - or private persons, more generally - to create new forms of property right, but only to trade rights that take existing forms. What can explain this peculiar limitation? All the answers offered so far by property theorists have marshaled functional explanations either in favor of or against the numerus clausus principle (hereinafter: NC). In this paper I shall set out to articulate a novel explanation of this principle. My argument develops two general claims. Negatively, explanations that emphasize the desirable effects - the functions - associated with this sort of limitation on the creation of new forms of property right cannot explain the principle in question. As I shall seek to show, this shortcoming is no mere explanatory gap. The NC principle, I argue, remains flatly indifferent to the functions advanced through property rights. Affirmatively, I shall seek to show that the principle of NC reflects a concern about legitimate political authority - that is, it gives a doctrinal expression to the question of how political authority is possible. The authority in question pertains to the normative power of legislating new property rights and their correlative obligations. The principle of NC, I argue, is a limitation on private legislation of new forms of property right. Most importantly, I shall argue that the underlying idea of political legitimation that grounds this principle is none other than democratic self-governance.

Number of Pages in PDF File: 37

Keywords: Property Rights, Ownership, Democracy, Property Theory

JEL Classification: K11, K10

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Date posted: August 18, 2010 ; Last revised: March 18, 2011

Suggested Citation

Dorfman, Avihay, Property and Collective Undertaking: The Principle of Numerus Clausus (August 18, 2010). University of Toronto Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1661068

Contact Information

Avihay Dorfman (Contact Author)
Tel Aviv University - Buchmann Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
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