Charles Mitchell (University College London - Faculty of Laws) & Jessica Hudson (University of New South Wales (UNSW) - Faculty of Law) have posted Justificanda (Forthcoming in Degeling, J Hudson and I Samet (eds), Philosophical Foundations of the Law of Express Trusts (OUP, 2023)) on SSRN. Here is the abstract:
The paper examines the 'express trust’ and ‘trusts law’ as objects for justification, and asks what, exactly, is being justified by the body of theoretical literature seeking to justify ‘express trusts’ and ‘trusts law’. Too little attention has been paid to this question and a closer investigation of it makes it possible to form a clearer understanding of the work that different justifications can and cannot do. The paper argues that the 'express trust’ is a set of legal propositions that interact with one another as a complex adaptive system to produce an overall effect, which is to allow the parties to redefine the trustee's authority as the titleholder of trust property. ‘The trust’ thus presents multiple objects for justification, being the individual legal propositions that constitute it, their overall system level effect, and the parties’ powers to create ‘the trust’. The paper goes on to explain how the one body of ‘trusts law’ is comprised of different types of legal rules that provide for the creation and operation of ‘the trust’. It then discusses how paying attention to these matters can help us form a clearer and more finely textured understanding of how some justifications for ‘express trusts’ and ‘trusts law’ can work, such as the autonomy rationale.
