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

51 Pages Posted: 20 Jun 2014

See all articles by Anna di Robilant

Anna di Robilant

Boston University - School of Law

Date Written: June 19, 2014

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

Suggested Citation

di Robilant, Anna, Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law (June 19, 2014). American Journal of Comparative Law, Vol. 62, Issue 2 / Spring 2014, pp. 367-416, Boston Univ. School of Law, Public Law Research Paper No. 14-27, Available at SSRN: https://ssrn.com/abstract=2456658

Anna Di Robilant (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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