Equity is something of a problem. Aside from the blatant patriarchy of the Presumption of Advancement or Common Intention Constructive Trusts, it is often a little difficult to smuggle critical (legal) theory into an Equity and Trusts course. A long time ago now, Cotterrell wrote:
Legal doctrine is ideologically important not only for what it expresses but also for its ‘silences’; for the apparent fact that it avoids explicit recognition of certain features of social life which are familiar from experience. Through the use of the concept of property, elaborated in legal doctrine, it becomes possible to banish almost entirely from the discourse of private law recognition of one of the most dominant features of life in a society of material inequalities – that of private power…. Today, however, adopting a critical perspective on doctrine, we can see more clearly how [the] doctrinal device of the trust has served to extend the ideological utility of the property-form. The trust makes possible the maintenance of permanent, easily identifiable property-owners (explicitly recognised as such by law) in the form of replaceable trustees, together with an indefinite range of beneficially entitled individuals or collectivities… who, having beneficial entitlements guaranteed in equity, can share in property-power but remain invisible to law as property-owners as such. (Cotterrell ‘Power, Property and the Law of Trusts’)
Cotterrell identified that the trust itself ‘greatly facilitates the concentration and preservation of capital – and thereby helps guarantee the power and security which the property-form embodies.’ These critical insights certainly remain useful, however, faced with large classes of teenagers that have known little but free markets, possessive individualism and globalisation, it remains a little old-school.
There are other approaches of course, Gary Watt’s well received Equity Stirring, the Feminist Perspectives on Equity by Lim and Mackenzie, a lovely chapter in Didi Herman’s An Unfortunate Coincidence on conceptions of jewishness in Equity, or the work of Margaret Halliwell in general. There is more of course, but this isn’t the place to talk about it.
Yesterday, my colleague (Sarah Keenan) suggested the most wonderful addition to this critical Arsenal, and from the last person I expected to be teaching on an Equity and Trusts Course: Slavoj Zizek. So, to anyone that hadn’t seen this before. Enjoy…. I expect to infuriate and excite my students with this for years to come (click the logo).