Monday, August 23, 2010

Dorfman on the Numerus Clausus

An intriguing paper (available here) about a contested  feature of the common law of property that (supposedly) restricts estates in land to a few judicially recognized forms. Dorfman argues, contrary to (among others) Merrill and Smith (see, e.g., here), that functional accounts of the numerus clausus are insufficient to explain the principle. In place of a functional approach, he offers a novel explanation of the numerus clausus based on a conception of legitimate political authority over social institutions.

Here is the abstract:
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.

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