Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law

Abstract

First-year law students soon become familiar with the numerus clausus principle in property law. The principle holds that there is a limited menu of available standard property forms (the estates, the different types of common or joint ownership, the different types of servitudes) and that new forms are hardly ever introduced. Over the last fifty years, however, property law has changed dramatically. A wealth of new property forms has been added to the list. This dynamism in the list has remained largely unexplored and is the subject of this Article. This Article focuses on a selection of recently created property forms, which share an important quality. They establish mechanisms of democratic and deliberative governance for resources as diverse as natural resources, scarce urban land, historic landmarks, or cultural institutions. The study of these property forms sheds new light on how the numerus clausus principle works in practice and on why it exists in the first place. It also discloses a fundamental transformation in the way we think about the institution of property and the benefits we may draw from it. We have come to believe that, for some critical resources that involve public interests, use and management decisions should be made not by a single owner, whether private or public, but through a process that is democratic and deliberative. This Article examines sympathetically but critically this aspiration to deliberative democratic governance in property law.

Keywords: property law, property theory, legal history, comparative law, comparative law theory

JEL Classification: K11, K19, K39