`Anna di Robilant Property and Deliberation. The Numerus Clausus Principle, New Property Forms and New Property Values. draft Introduction The numerus clausus principle means that property law recognizes only a limited menu of mandatory forms. In the United States, first year law students spend significant time mastering the limited menu of estates in land. In France or in Italy, every first year student learns that the “real rights” are ownership, emphyteusis, superficies, real servitudes, the right of usufruct, the right of use and the right of habitation. The numerus clausus principle exists in both the civil law and the common law, but, comparative law scholars warn, its nature and scope differ. In the civil law, the numerus clausus is a rigid rule with a long historical pedigree. It has structured the property system since Roman law. It is either explicitly stated or implied in the civil code. The menu of recognized forms is a relatively short one, comprising less than ten items. It is also significantly stable, with few variations from Justinian to the present. By contrast, in the common law, the numerus clausus has attracted the attention of property scholars only recently. It is a more flexible rule of judicial self-governance. The menu is a richer one, comprising forms, such as the trust, that civil law scholars have long envied. The fact that the numerus clausus is a near universal feature of property systems has not made it less puzzling to private law scholars. Isn’t private law’s very function to provide individuals with flexible legal devices that allow them to reach any desired economic outcome?1 If flexibility and customization are what private law promises, then why do virtually all modern legal systems provide a restricted list of recognized forms? In recent years, property experts have proposed a variety of possible explanations for the numerus clausus principle. For some, it serves the purposes of preventing the excessive fragmentation of property entitlements, which would preclude, or make more difficult, the efficient productive use of valuable resources. For others, the function of the numerus clausus principle is to lower the information costs incurred by third parties who seek to acquire property rights or to avoid violating them. Still others suggest that the numerus clausus principle works as filter of the content of property forms, allowing the legislature and courts to deny the status of property rights (i.e. validity against the world) to forms that are at odds with contemporary values. This rich strand of recent numerus clausus scholarship has focused mostly on the common law, leaving undisputed the traditional view as to the rigidity and stability of the numerus clausus principle in the civil law. This article presents a new understanding of 1 See Bernard Rudden, Economic Theory v Property Law: The Numerus Clausus Problem, in OXFORD ESSAYS IN JURISPRUDENCE, JOHN EEKELAAR & JOHN BELL EDS (1987) 239-263 (at 239, “ the issue to be discussed is the apparent conflict between a modern economic theory of property rights and the law”). Law & economics antipathy for numerus clausus principle 1 the numerus clausus principle in civil law systems. It focuses on an aspect of the operation of the numerus clausus principle in the civil law that has received virtually no attention. If we look at the list of recognized property forms in a historical perspective, yet another numerus clausus puzzle emerges. Not only is the list dynamic, in the sense that new property forms are occasionally recognized, but we can observe an interesting type of dynamism.2 Property forms have been, first, eliminated from and, then, re- admitted to the list. The article examines two recent instances where an old form was re- introduced. The right of emphyteusis (a type of long lease) was a form widely used until the 17th century. It was dropped from the list of the 19th century civil codes and was recently legislatively re-introduced in France and in the Netherlands. Ownership of res communes omnium (ownership of commons) was a form recognized in Roman law and later dropped from 19th century civil codes. It is now being revived by French and Italian property lawyers and is the object of recent legislatives proposals. The article draws from these two recent episodes of dynamism in the list of recognized property forms two ideas. First, the numerus clausus operates in much the same way in the common law and the civil law. The numerus clausus is yet another instance where the alleged stark difference between common law property and civil law property has been largely overstated. In both systems, the numerus clausus is a flexible principle that allows for significant experimentalism in property law. But, in both systems, there are limits to this experimentalism. Because property rights are in rem, i.e. valid against the world, we want to limit the information costs incurred by third parties who seek to acquire rights or avoid violating them. And, because the in rem nature of property rights confers on them a “public” quality, we want to exercise some control over the content of property forms. Second, these recent instances in which an old property form was re-admitted into the standard list suggests something important about the emerging normative commitments of property law. The numerus clausus list tells us a great deal about the values we associate with property. But qualitative studies of the numers clausus list are still largely missing.3 In other words, there has been little investigation of what these values are and how they have changed over time. Moments of dynamism in the list of property forms tend to be moments of significant social and economic change, as well as change in private and public values. Property scholars and historians agree that the pruning and expansion of the property list that happened in the early 19th century, when modern industrial society was just taking shape, reflected the rejection of feudal hierarchies and the commitment to negative freedom and the free alienability of property in the market. But what do recent changes in the list suggest? Is there anything new in the plurality of clashing normative ideals we seek to pursue through property? I argue that emphyetusis and ownership of res communes omnium have been, or are in the process of being, re-admitted into the list because they have an important quality. In both, decisions over the use and management of resources that involve important public interests, such water, scarce urban land or cultural institutions, are made through a participatory 2 I borrow the term “dynamism” to describe changes in the list from Nestor M. Davidson, Standardization and Pluralism in Property Law, 61 VAND. L. REV. 1597 (2008). 3 with the exception of Joseph W. Singer, Democratic Estates: Property Law in a Free and Democratic Society, 94 CORNELL L. REV. 1009 (2008-2009)(focusing on changes in the list of property forms in the US over the course of the 20th century and on the rejection of feudal hierarchies.) 2 deliberative process. Both property forms have mechanisms of deliberative democracy built in. They suggest that decisions over certain resources should be made not by one private or public owner, but through a deliberative process open to all. 1. The “Numerus Clausus” principle in the civil law and the common law a. The conventional wisdom: the numerus clausus as a rigid design principle of civil law systems. The numerus clausus principle means that the legal system limits the creation of property rights by providing a fixed menu of standard property rights. The principle has two dimensions. First, it limits the number of property rights parties can create (Typenzwang). Second, it precludes customizing the content of the allowed property rights. Parties cannot freely shape the content of the allowed property rights but rather have to stick to legislatively predetermined terms (Typenfixierung). Comparative property scholars have long viewed the numerus clausus principle as one of the features marking a stark contrast between common law and civil law property.4 They suggest that, while the numerus clausus principle exists in both property systems, its nature and scope differ. First, the numerus clausus principle has a long pedigree in civil law systems but a relatively recent history in the common law. In civil law systems, the numerus clausus principle has been a near constant feature since Roman law.5 The numerus clausus principle was explicitly formulated for the first time in 19th century German property theory, but scholars have traced its presence back to Roman law, where it took the form of a numerus clausus of property actions.6 By contrast, in the common law, the numerus clausus principle has attracted significant scholarly attention only in relatively recent times.7 Comparative property scholars had long argued that the numerus clausus 4 FW. Frachter, INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW (1973) vi ch 11, n 109 (arguing that civil law codes contain a rigid numerus clausus principle, an exclusive list of recognized real rights which prevents the recognition of the trust form); Others go even further and argue that the numerus clausus principle is known only to civil law systems and is a legacy of Roman law see RENE DAVID & th C.JAUFFRET-ESPINOSI, LES GRANDS SYSTEMES DE DROIT CONTEMPORAINE (10 ed. 1992) n 310. 5 BRAM AKKERMANS, THE PRINCIPLE OF NUMERUS CLAUSUS IN EUROPEAN PROPERTY LAW (2008) p 19-80 (tracing the history of the numerus clausus