The Numerus Clausus and the Governance of Property Law: A Comparative Approach to German, English and American Legal Reasoning

Abstract

Abstract Relying on a micro-comparative analysis, mainstream comparative scholarship tends to be of the view that most modern legal systems place limits on both the number and the content of the property rights private parties can create. This paper takes a different angle, arguing that such conclusion, although correct and meaningful, is essentially incomplete, as it does not take account of the implications this ‘numerus clausus principle’ has for the institutional governance of legal systems. Adopting a macro-comparative approach, the paper analyses this principle from the perspective of its impact on the role of courts and their legal reasoning in modern Germany, England and the US. It concludes that the numerus clausus principle has materially different ‘systemic effects’ in each of these jurisdictions and that this has important implications both for the understanding of the principle and the development of property law more broadly.