Workshop: Power, Property and the Law of Trusts Revisited, University of Kent, 25-26 October

In his 1987 article, Roger Cotterrell outlined for the first time a critical, socio-legal approach to the law of trusts.[1] For Cotterrell law is both instrumental and ideological. As such, critical analysis aims at the demystification of law: how does law structure and guarantee, on the one hand, yet legitimate and hide, on the other, the exercise of power? In particular, Cotterrell argues that trusts extend and intensify the ideological function of property, which hides or silences inequalities through a methodological separation of persons and things. Trusts further separate persons and things through the notion of the fund and the figures of trustee and beneficiary. Consequently, the trust both concentrates property-power (through the formation of large funds) and hides property-power (through the splitting of visible legal and invisible beneficial ownership). This critical framework explains the ideological significance of the beneficiary principle and the rule against non-charitable purpose trusts; fiduciary obligations; and charitable trusts. Thirty years later, Cotterrell’s work continues to pose questions of power, property, ideology and inequality, opening new perspectives on the broader societal significance of the effects of trust law.

Kent Law School, University of Kent (UK) is hosting a symposium revisiting themes and theoretical perspectives in Roger Cotterrell’s now canonical work in the field of trusts law. The symposium will bring the theoretical insights of sociological and critical theory to the field of trusts. Such research is still relatively rare, although the recent work of Brooke Harrington[2] and Adam Hofri-Winogradow[3] demonstrates its possibilities, importance and timeliness. Trusts have a major impact on the functioning of state and society which are often overlooked, with the emphasis usually being given to the corporate form. For example, trusts contribute to (global) avoidance of taxes and regulations, the enabling of money-laundering and the production and legitimation of wealth inequality across generations through ‘estate planning’. The symposium will provide a forum for much-needed development and enhancement of socio-legal engagement with contemporary trust practices. Themes to be discussed include:

  • Trusts and ideological (state) apparatuses. While ‘ideology critique’ has encountered its nadir in both critical legal and socio-legal theory, ideology nevertheless resurfaces in the form of a quintessential faith in neoliberal policies, particularly in the context of trusts. While a number of national and international initiatives are beginning to ‘regulate’ trusts (particularly in the spheres of fund management, information sharing and anti-money laundering), the trust remains essentially a ‘private and confidential’ legal form, particularly as illustrated by offshore trust industries. Jurisdictional competition for trust business has led to a de-regulatory race-to-the-bottom: abolishing the rule against perpetuities, legislating for the validity of non-charitable purpose trusts, and limiting beneficiaries’ ability to enforce the trust. It becomes incumbent to ask: What role does the state have in contemporary trusts practice and how is the state conceived by trust users? What techniques of mystification and power are involved in contemporary trusts practice? How might different frameworks for the understanding and critique of ideology affect Cotterrell’s analysis of the trust?
  • Trust and power. Where does power lie between settlors, beneficiaries, trustees and trust industry? Cotterrell argues that beneficiaries hold power as owners of the fund; however, as Moffat observes, in practice trustees often hold the balance of power.[4] But the rise of the capital management industry has engendered a shift from personal trust in another to impersonal trust in systems. In the context of large discretionary and pension trusts, the fund itself emerges as having power, perhaps even agency, as an institutional investment. New assemblages between settlors and the trust industry are being produced whereby settlors’ autonomy (and therefore private property) is privileged, often excluding both local and global concerns and the public interest. How, then, might we theorise conceptions of power to analyse changing power-relations in the trust form? How might the trust industry be governed in light of the tension developing between the personal and the impersonal, the local and the global?
  • Trusts and the 1%: the production and legitimation of inequality. How does the trust contribute to and possibly legitimate the increasing rate of inequality between the richest 1% and the rest of society? As a ‘gift on the plane of time’, to what extent does trusts laws contribute to intergenerational inequality? In what ways does trusts law contribute to gender inequality (eg in frustrating spouses’ claims in divorce proceedings)? And to what extent, if any, can trusts provide a strategy for the production of equality?
  • Communitas beneficium: from ethical investment to neoliberal ideology. Cotterrell concedes that a focus on the power dimension of trusts ‘should not make us ignore the importance of property as security – as a form of protection’ Pension trusts and charitable trusts provide clear examples of property-as-security in tension with property-as-power. For example, to what extent should pension trustees be required to take ethical factors into account in making investment decisions? Similar questions relating to social investment arise in the context of charitable trusts, which also raise the problem of state provision of essential services in neoliberal times. How is the public interest or communal benefit of trusts conceived and constructed? To what extent might charitable trusts work against the public benefit?

Speakers include:

  • TT Arvind, Newcastle University
  • Rosemary Auchmuty, University of Reading
  • Brenna Bhandar, SOAS
  • Michael Bryan, University of Melbourne
  • Jonathan Garton, University of Warwick
  • Adam Gearey, Birkbeck University of London
  • Hayley Gibson, University of Kent
  • Brooke Harrington, Copenhagen Business School
  • Adam Hofri-Winogradow, Hebrew University of Jerusalem
  • Johanna Jacques, Durham University
  • Henry Jones, Durham University
  • Andres Knobel, Tax Justice Network
  • Nick Piška, University of Kent
  • Lisa Sarmas, University of Melbourne
  • Ruth Stirton, University of Sussex
  • Carla Spivack, Oklahoma City University of Law
  • Sarah Wilson, University of York

If you would like to attend the symposium please register at https://www.kent.ac.uk/law/research/centres-and-groups/equity.html?tab=forthcoming-events There is a small fee to cover catering and other expenses. For further information please contact Nick Piška: n.piska@kent.ac.uk.

The symposium is organised by Nick Piška and Hayley Gibson as part of the Equity & Trusts Research Network and is sponsored by the SLSA, KLS Research Group Social Critiques of Law and KLS Workshop Fund.

[1] R. Cotterrell, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship’ (1987) 14(1) Journal of Law and Society 77. Also see ‘Some Sociological Aspects of the Controversy Around the Legal Validity of Private Purpose Trusts’ in S. Goldstein (ed), Equity and Contemporary Legal Developments (1992) and ‘Trusting in Law: Legal and Moral Concepts of Trust’ (1993) 46 Current Legal Problems 75.
[2] B. Harrington, Capital without Borders: Wealth Managers and the One Percent (Harvard University Press, 2016).
[3] A. Hofri-Winogradow, ‘The Demand for Fiduciary Services: Evidence from the Market in Private Donative Trusts’ (2016) 68 Hastings Law Journal (forthcoming).
[4] J. Garton, Moffat’s Trusts Law: Text and Materials (Cambridge University Press, 2015), pp.62-63.

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