Reification and Tilt in the Critique of Trusts

by Roger Cotterrell | 26 Nov 2024

Extract from Roger Cotterrell’s ‘Afterword: Trust and Critique after Three Decades’ in Critical Trusts Law: Reading Roger Cotterrell, eds Nick Piška and Hayley Gibson, available fair access from COUNTERPRESS.

‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship’¹ was written in the mid-1980s when the American critical legal studies (CLS) movement was flourishing. Parallel but differently oriented movements were also developing in the UK and various continental European countries.² In that context, the essay criticised the orientation of American CLS, arguing that critical legal scholarship should be linked closely with social scientific studies of law and not confined (as American CLS mainly was) to being a law school movement. CLS had to be more than an ‘internal’ lawyers’ critique of legal doctrine and had to draw on empirical and theoretical social scientific research. And it needed to ask what kind of knowledge is sought by critique and for what purposes.

Today I would say that critical study cannot, if it is to be productive, only be critical. It has not only to point out what may be problematic, incoherent, mystifying, misguided or iniquitous in what it studies but also how, if at all, change can be brought about in what it critiques, and what principles or values should guide this constructive critique. If, for example, there is much wrong with the law of trusts and the way it is used in various social and economic contexts, how (using what intellectual tools?) might critique indicate ways to move legal development and interpretation in different ways? How might it point to resources to be called on to do this? How then can critique help to construct law in more satisfactory ways? And how can we theorise practically what ‘satisfactory’ might mean—in other words, what might be realistically expected from law? What might be hoped for and worked towards, using the tools of academic legal and social scientific research?

American CLS did have a constructive side and this was focused on legal practice, especially in the courtroom; it focused on the possibility that sharp lawyers with progressive values (and sympathetic judges hearing these lawyers’ persuasive arguments) might be able to ‘flip’ legal ideas in clever, persuasive interpretation, eloquently fitting out these ideas with new meaning or significance, to make them potentially liberating rather than repressive; progressive rather than reactionary, socially enlightened rather than narrowly conservative. In a way, this is what progressive lawyers always do and have done. But I thought, and still think, that both theory and empirical study are needed to ground this approach; to make the values and policies that progressive practising and academic lawyers urge on legal doctrine something more than a matter of personal, subjective preferences or convictions.

In this context, empirically-oriented social theory may have much to offer. While social science cannot itself prescribe values, it has the potential through empirical and theoretical research to illuminate the likely effects of following certain policies or trying, through law, to implement certain values. And it can clarify why some moral or political issues seem to become important in debate at certain times and unimportant or irrelevant at others. When and why, for example, does (or does not) slavery become a matter of moral contention—or abortion, or same-sex marriage, or poverty, or corruption? How, at various times and in various places, is the agenda of moral (and legal) debate set, so that some issues seem meaningful and urgent in some historical and social contexts, but not in others?

Critical study of law surely needs criteria to set its directions constructively. Social science is one important means of helping to clarify those criteria—not by purporting to prescribe the criteria themselves but by providing means of understanding the contexts in which certain criteria can seem meaningful, practical and relevant; the contexts in which these criteria are chosen, and the consequences of the choices made. In this way it can help to inform a socially aware jurisprudence.³

Despite its limitations, early CLS emphasised two critical concepts that are still strikingly easy to apply to the field of trust law. One is the concept of reification.⁴American CLS claimed, following earlier theories, that much of the ideological power of law comes from making social relations—such as those of contracting parties, or those centred on possession, control and use of benefits—appear as things.

Social relations in certain forms are reified—they seem to become social ‘objects’, solid entities, their existence and nature normally unchallenged and unchallengeable. For example, relations between parties negotiating with each other are reified (turned into a social object) in the form of a contract—which has a definable existence in time and, often, the quality of being an assignable asset. So, the contingency of social relations (with all their variable qualities, for example as regards power and dependence) is turned into the impersonally neutral, objective form of a contract—a legal entity.

More generally, social relations arranged around the use of resources are understood in terms of property. The idea of property as a thing distinct from its owner is part of the everyday furniture of social life in modern societies—and law protects rights in this thing which is property. On this basis, the right generally to amass capital without limit and use it freely is an assumption not only of law but of everyday life.

The most perfect legal example of reification may be the trust. Trusting relations pervade social life in innumerable ways. But they become reified in certain ways as a trust—a social object—under specific conditions. The trust is undeniably a legal ‘thing’, though rooted in general social relations centred on trust. But its thing-like quality is such that it has a legal life of its own circumscribed not by the moral and sometimes emotional circumstances that surround trusting in everyday life but by legal rules.

The intimate, often ambiguous and fragile social condition of trusting someone (or something) is, in a sense, drained of its social complexity and contingency. Its richness is reduced to a set of defined powers and responsibilities. If trusting has at its heart a moral relation centred on the risks and responsibilities of dependence of one person on another, in law it becomes primarily a rule-bound device for holding and managing wealth and for distributing and controlling rights in this.

Thus, legal trust becomes a shadow of what trust often is in social interaction. But the compensation, which law provides for this impoverishment, is that, as Maitland enthused long ago,⁵ the trust is potentially an instrument of almost unlimited flexibility. It can legally define property relations with the precision necessary to fix the exact amount of freedom or restriction to be attached to individuals or entities entrusted with managing assets in which other people or entities have legitimate claims.

The other early CLS notion readily applicable in studying trust law is tilt.⁶ Because the trust is so flexible, it is a classic case of a legal concept susceptible to ‘tilt’—that is, it may be open to many interpretations of its nature and function but tilts towards some more powerfully than others in practice, although legal thought may underemphasise or even not recognise this tilt. The trust form can be applied for ‘good’ or ‘bad’ purposes, as judged from various perspectives.

It can tilt, for example, to surround wealth with secrecy, technicality and obfuscation, perhaps freeing it from diminution by taxation, or from claims that might otherwise attach to it. But it is also a device for distributing wealth, for pursuing public charitable purposes, for safeguarding vast funds intended to benefit large numbers of individuals (as in major pension funds), or simply for promoting a basic, essential legal value of security (in this case, security of property holding). In the form of resulting or constructive trusts, it can be a means of holding otherwise free-floating assets where, for example, transactions have failed, intentions have been misunderstood, or wrongs need to be redressed by legally shifting entitlements.

The trust is eminently ‘tilt-able’. Critical trusts scholars can ask how far the trust in practice is tilted towards certain purposes and understandings more than others and with what consequences, how far it can be tilted in socially valuable ways, and what obstacles exist in legal thought and practice for doing this.

Roger Cotterrell is Anniversary Professor of Legal Theory at Queen Mary University of London

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1
Roger Cotterrell, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship,’ Journal of Law and Society 14 (1987).
2
See e.g. Michel Miaille, Une Introduction Critique au Droit (Paris: Maspero, 1976); Peter Fitzpatrick and Alan Hunt, eds., Critical Legal Studies (Oxford: Blackwell, 1987); Roel de Lange and Koen Raes, eds., Plural Legalities: Critical Legal Studies in Europe (Nijmegen: Ars Aequi Libri, 1991).
3
Roger Cotterrell, Sociological Jurisprudence: Juristic Thought and Social Inquiry (Abingdon: Routledge, 2018).
4
Peter Gabel, ‘Reification in Legal Reasoning,’ Research in Law and Sociology 3 (1980).
5
Frederic W. Maitland, Equity: A Course of Lectures, revised ed. (Cambridge: Cambridge University Press, 1936), 591–2.
6
Wythe Holt, ‘Tilt,’ George Washington Law Review 52 (1984).