Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
legislature. In origin and in essence, the numerus clausus confers exclusive
jurisdiction for the recognition of new types of property rights on the
legislature. However, incontestably, the courts in all legal systems in fact
play an important role in developing and shaping the specific property
rights and the rules that govern them. A debate on the numerus clausus is
therefore also a debate on who should take the lead in the development
and modernisation of a law of property: the courts or the legislature?
Put in these terms, the future of the numerus clausus touches upon the
fundamental justifications for codified law. In this debate, I opt for maintaining
and enhancing the primacy of the legislature. Apart from the
well-known general reasons for codified law, such as legal certainty, foreseeability,
and democratic legitimacy, the primacy of the legislature in the
development of property law is justified by the impact of property rights
in society. Their effect on third parties requires a higher level of certainty:
third parties should be able to know what to expect. Also, the long-term
effects of property rights require policy choices for which the legislature
is better equipped than a court.
Maintaining the primacy of the legislature in the field of property law
should not be a gratuitous gesture. It implies that the legislature has a
duty to act and enact where and when the rules of property law require
change or modernisation. The legislature should take a more active and
leading role in adapting property law to the needs of commerce and society.
This responsibility, however, is one that the executive and legislative
branches share with the legal community. Practitioners and scholars
should proactively support the legislature by clarifying the changes
necessary to modernise the law of property and drawing up legislative
proposals. In this way, the numerus clausus in the law of property becomes
a living dogma, too significant and too vital for Vera Bolgár’s museum of
Begriffsjurisprudenz.
3.10. Party autonomy in the law of property –
the way forward
The numerus clausus and party autonomy being flip sides of the same coin,
the question of whether there is a future for the numerus clausus in the law
of property inevitably entails a discussion of the room that individual parties
should be given to shape their legal relationships. There is a marked
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T.H.D. Struycken
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