CPLC Lunchtime seminar: 'Form and substance of the numerus clausus'

Speaker: Dr Ernesto Vargas Weil (Cambridge)

The work I want to present corresponds to the final substantive chapter of a book I am writing (‘Stability and Change in Modern Property Law’) This book is motivated by an apparent paradox inherent to many contemporary property systems: how can an area of private law made of a fixed list of rights, frequently described as static, rigid and formalistic, accommodate the demands created by a vast array of social and economic changes, without undergoing noticeable transformations? Instead of denying the paradox, the book opts to embrace it, arguing that the very legal principle that creates the paradox -the principle of numerus clausus- provides modern English and German property law with an ‘internal’ or ‘doctrinal’ structure that allows them to deal with changing social needs, while retaining their stability. The central argument of the book is that the doctrine of numerus clausus exists to ensure that property law retains a ‘modular design’ that enables this area of law to accommodate new realities. This chapter presents the different parts that make up this thesis in a unified and coherent manner, in the context of the contemporary ‘substance and form’ debate. It starts by discussing what is ‘formal’ and what is ‘substantive’ in the numerus clausus doctrine (8.1). Then, it outlines how the form and substance of the English and German numerus clausus enables individuals and the State to use a limited set of property types to accommodate new realities through a process of ‘functional’ transformation of its modules (8.2). Afterwards, it explains the role of form and substance in the ‘structural’ transformation of the numerus clausus by legislators, regulators and courts (8.3). The chapter ends highlighting the importance of formalism for the sound operation of property systems with substantive modular designs (8.4.)

Sandwiches served in the Lower Ground Atrium between 12.30pm and 1pm; seminar to commence in S19 at 1pm.

Open to Faculty members, visitors, invitees and LLM/MCL/PhD students.

We hope that you can make it to these exciting events: Peter Candy, Poorna Mysoor, Eugene Shevchuk, Fleur Stolker (Convenors)