Vanderbilt Law Review

First Page



At the heart of contemporary property theory stands an intriguing puzzle. Unlike the relatively unconstrained freedom that contract law provides for private ordering, property law recognizes only a limited and standard list of mandatory forms. This standardization-known as the numerus clausus from the civil law concept that the "number is closed"-poses a basic conundrum: what can explain a persistent feature of the law that seems, at first glance, so clearly to restrict the autonomy and efficiency gains conventionally associated with private property?

This puzzle has garnered significant scholarly attention in recent years. Some scholars have argued that standardization, although paternalistic, in fact enhances efficiency. These accounts emphasize the potential of standardization to facilitate alienation, scale property interests appropriately for productive use, and reduce information-cost externalities. Another group of scholars has argued that the numerus clausus embodies inherent categories of meaning. Under these perspectives, the numerus clausus reflects the normative coherence of existing social patterns, the objective well-being of interest holders, or underlying democratic values.

Although these attempts to explain standardization in property law offer significant insights, they suffer from two interlocking limitations. Efficiency perspectives focus on the meta-structure of standardization, largely ignoring what the rich and interesting content of the individual forms reveals about the phenomenon. Conversely, approaches to standardization that focus on content have much to say about that substance, but essentially shunt aside persistent structural aspects of the phenomenon. Any comprehensive theory must thus account for what these attempts to explain standardization leave out-that structure and content together are important to unraveling the problem of the numerus clausus. To begin with structure, standardization is a feature of property law that transcends context. Versions of the numerus clausus are found in Roman law and recur throughout the history of feudal and post-feudal English common law.6 Likewise, some form of a standard list appears in disparate modern civil law and common law systems throughout the world. Belying any account of the phenomenon grounded in specific patterns of social relations or normative coherence, this transcendence suggests that there must be some overriding structural reason why property interests almost always coalesce around forms defined by the state.