The Numerus Clausus Principle, Property Customs, and the Emergence of New Property Forms

34 Pages Posted: 3 Oct 2015 Last revised: 16 Mar 2016

See all articles by Yun-chien Chang

Yun-chien Chang

Academia Sinica - Institutum Iurisprudentiae (IIAS); New York University School of Law

Henry E. Smith

Harvard Law School

Date Written: August 1, 2015

Abstract

The numerus clausus debate has focused on the principle’s explanatory power in the American common law, but the available theory is not as readily applicable to the civil law context. The numerus clausus principle present in the civil codes is often stricter than it is in practice — courts in several jurisdictions have allowed property customs to create new property forms. In this Essay, we advance a more general theory of optimal standardization to explain this principle in both the common law and the civil law. We also point out that the numerus clausus principle and property customs (whether they create new property forms or not) both involve an “informational trade-off” — between extensiveness of the audience and intensiveness of the conveyed message. We propose four propositions regarding whether customs would become de jure. Our study on the dynamics between the numerus clausus principle and property customs in East Asia in general, and the case study on the “small property rights” in Taiwan in particular, provide real-world evidence for these propositions.

Keywords: The numerus clausus principle, the numerus apertus principle, optimal standardization, civil law, externalize, property form, right of de facto disposal, illegal buildings

JEL Classification: K11

Suggested Citation

Chang, Yun-chien and Smith, Henry E., The Numerus Clausus Principle, Property Customs, and the Emergence of New Property Forms (August 1, 2015). Iowa Law Review, Vol. 100, 2015; Harvard Public Law Working Paper #15-18. Available at SSRN: https://ssrn.com/abstract=2668442

Yun-chien Chang (Contact Author)

Academia Sinica - Institutum Iurisprudentiae (IIAS) ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei City, 11529
Taiwan

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Henry E. Smith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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