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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi

An Untheory of the Law of Trusts, or


Some Notes Towards Understanding the
Structure of Trusts Law Doctrine
JE Penner*
The last time I gave a Current Legal Problems lecture at UCL,
1
my
central claim was that one can, and indeed must, distinguish between
thinking theoretically about something, in the sense of engaging in
theory construction or criticism or both, and just thinking critically
about something. That claim met almost universal resistance, starting
with Lord Justice Sedley who chaired the event and devoted his con-
cluding remarks to stating in the clearest terms that he thought I was
dead wrong. Nevertheless, I still think that the distinction is sound and
important. The point of mentioning it is not, however, to re-visit that
claim, or even assume its truth in what follows. I raise it because it does
help explain the title of this paper.
Here is the idea behind an untheory of the law of trusts. I have been
working in the law of trusts for about a decade and a half, and think
* Professor of Property Law, UCL Faculty of Laws. The text that follows is a revised
version of the inaugural lecture I gave at UCL on 10 December 2009. One of the aims of
that lecture was to provide a kind of overview of what I perceive to be the state of the law
of trusts and the difculties that may lie in its future. I have here tried to retain something
of the avour of that lecture. I hope the reader will forgive me for its informality. I am
grateful for signicant discussion of the ideas herein, and for comments on and criticisms
of the various drafts, to Lisa Austin, Rob Chambers, Josh Getzler, Stephen Guest, David
Hayton, Duncan Horne, Larissa Katz, Dennis Klimchuk, Nick Le Poidevin, George
Letsas, John Lowry, Charles Mitchell, Rob Stevens, Bill Swadling, and Ian Williams. All
errors in conception and expression reside with me.
1
JE Penner, Decent Burials for Dead Concepts (2005) 58 Current Legal Problems
31342.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
654 JE Penner
I know something about the subject. I am not interested here in claim-
ing that my own views about particular issues in the law of trusts are
right. What I do want to explore is what, to the extent I know anything
about the law of trusts, that knowledge or understanding consists in.
2

I am sometimes asked what my theory of the law of trusts is, and it has
occurred to me on these occasions that I dont have one. Indeed, I am not
entirely sure what such a theory would even look like. Now how could
that be? In particular, how could that be for someone like me who teaches
the philosophy of law and has spilled some ink on its issues, ie how could
that be for someone who at rst glance is someone who is prone to phi-
losophise about things?
The short answer would be that there is nothing of particular philo-
sophical interest in the law of trusts, but that short way with the question
does not really address the heart of the matter, and is wrong anyway.
3

2
Another way of putting this question, suggested to me by Stephen Guest, is, what
makes propositions of trusts law true?. The logic of the reformulation is patent: obvi-
ously, if I have knowledge of the law of trusts this entails that I have true beliefs about
it, and so an exploration of my knowledge (to the extent I have any) just amounts to
determining which statements concerning trusts law that I endorse are true, and so, a
necessarily preliminary to this will be determining what makes a statement about the
law of trusts true. But I prefer the rendering in the text, since the latter formulation may
beg an important issue. Compare my knowledge of arithmetic. I take it that my know-
ing or understanding arithmetic consists in my being able to add, subtract, and so on.
It consists in the fact that I have mastered the rules of addition, subtraction, and so on.
Now ask, what makes 2+2=4, which I guess is a proposition of mathematics in the
spirit of Guests suggestion, true? I havent the foggiest. (Or rather, I think the question
is probably awry on Wittgensteinian principles.) To make the point very schematically, if
my knowledge of the law of trusts is, in some substantial part at least, a kind of knowing
how as opposed to knowing that, then the standard of correctness is success, not truth.
Of course I would not deny, least of all in terms of legal knowledge, that a great deal of
knowing that is necessary for and goes hand in hand with knowing how, but I do not
want at this point to slight the latter by treating everything as a matter of the former. As
to the knowing that side of the question, which is the focus of the suggestion, one quite
properly asks how does a particular rule of trusts law (which trusts lawyers will need to
come to know how to apply) happen to be a (valid) rule of trusts law in the English (as
opposed to the Australian or Pennsylvanian) law of trusts?. I suppose the answer to that
to be quite complex, and some of my thoughts about it will become plain as we proceed,
in particular the thought that judicial decisions that give rise to valid precedents are such
because other rules and concepts of law (other than the rule laid down by the instant
decision) were correctly applied in the course of the legal analysis of the case.
3
I do write papers for books with titles such as The Philosophical Foundations of Unjust
Enrichment (edited by R Chambers, C Mitchell, and J Penner) (Oxford: OUP, 2009),
and I am organising a volume on the philosophical foundations of the law of property,

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
An Untheory of the Law of Trusts 655
The heart of the question, to my mind, is a certain picture of what a
theory of the law of any particular area consists in. Let me call this the
standard picture.
4
The standard picture begins with the following commitment: areas of
law, like the law of contract or tort or trusts, are organised around core
principles, which can be elaborated in different contexts to justify the
particular rules of law in that area. I think that commitment is sensible.
What I want to question is the way the standard picture depicts the
nature of the core principles and the relationship between them and the
more specic rules of law. These core principles, so the standard picture
goes, are, if not necessarily moral principles, like moral principles in that
disagreements that lawyers and judges and commentators have about
what the core principles are or what they really amount to is akin to
moral disagreement in that they smack of the same sort of controversy
that moral disagreements display. These disagreements reect deep disa-
greement about the nature of the right or the good or important values.
So, ultimately, disagreements about the core principles of an area of
law resemble, in terms of the nature of the disagreement, disagreements
about things like the legitimacy of capital punishment, or a womans
right to an abortion, or about the legitimacy of private property. Now
which includes the law of trusts. And besides, as Jerry Fodor says, Philosophy can be
made out of anything. Or less. JA Fodor, The Language of Thought (New York: Thomas
Y Crowell Co, 1975), 6 fn 4.
4
By referring to a standard picture, I make no claims about how widely held is this
picture of the way theories of different branches of law are supposed to look. Rather,
the idea is that this picture, on my diagnosis, lies behind the question, what is your
theory of the law of trusts, or the law of contract, or the law of whatever?. The modern
character of the question, and the standard picture of such a theory, has, of course, been
enormously inuenced by the work of Ronald Dworkin, but I am not here directly
assessing his own theory of the content of the law and the nature of legal disagreement,
which has its own particular features; indeed, as both Stephen Guest and George Letsas
remind me, Dworkin himself would reject the standard picture as I have described it, for
Dworkin does not regard the law as a system of rules underpinned by moral principles,
nor would he regard legal reasoning as some interplay between moral principles and legal
rules. Furthermore, the nature of the question, what is my theory of trusts law?, and
the correlative picture of theory which informs it, is neutral as between positivists and
anti-positivists. For a positivist, just as much as, say, a Dworkinian, can claim that an area
of legal doctrine is best explained by the existence of some underlying principle or prin-
ciples which make sense of the more specic rules. An example might be an information
costs economic theorist of say, the numerus clausas (see T Merrill and H Smith, Optimal
Standardisation in the Law of Property: The Numerus Clausas Principle (2000) 110 Yale
LJ 1). The difference between them would lie in the positivists claim that the founda-
tional principle or principles are source-based, and the anti-positivists denial of that.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
656 JE Penner
I said these principles are not necessarily moral principles, but are at least
like them in displaying the sort of deep disagreements that surround the
correct conception of moral principles. The obvious alternative non-
moral candidate for principles of this kind would be principles embed-
ded in controversial theories, ie principles the truth of which turns upon
the validity of those theories; the obvious example for law would be
economic theory. An important way in which economic theory is con-
troversial is that, just like moral controversy, the controversies are often
deep in the requisite sense.
5
If the standard picture correctly depicts the role of core principles,
then a theory of the law of trusts would reveal what they are, which
would reveal the moral or economic or other commitments, so to speak,
of the law of trusts. Moreover, such a theory would provide a structure
for the law: the rules of trusts law would be seen as practical entailments
of those principles in particular situations, typically revealed in judicial
decisions. Furthermore, the theory would show how the disagreements
that lawyers, judges, and commentators have, at least in the typical case,
are more or less deep disagreements about the core principles.
Let me dwell for a moment on the issue of disagreement, because
how we understand legal disagreement is basically at the centre of my
objection to the standard picture. Why is it that this picture requires
disagreement to be deep in this particular way? The answer, I think,
has to do with a particular idea about the nature of legal rules, or per-
haps, legal decisions in particular cases. The idea is something like this:
whilst, on occasion, a legal rule, embodied in a statutory provision,
might be difcult to interpret, or a judges reasoning in a case confused
or confusing, by and large the rules of an area of law are understood
by most lawyers and can be applied to resolve a dispute. Learning these
sorts of settled rules, ie learning to apply them, is not particularly dif-
cult. After all, students of law start applying statutory provisions and
judicial decisions to problem cases in their rst week of law school. So
if there is disagreement in how the law applies to a case, in particular
at the appellate level, then by and large it cannot be because there is
any doubt about which rules or decisions are relevant, and what they
say. Legal disagreement is not supercial in this way. It must be deeper,
5
For example, see the disagreement between Merrill and Smith, supra n 4, and
H Hansmann and R Kraakman, Property, Contract, and Verication: The Numerus
Clausus Problem and the Divisibility of Rights (2002) 31 Journal of Legal Studies 373.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
An Untheory of the Law of Trusts 657
and the obvious reason for this depth would lie in the fact that the core
principles are themselves controversial, and how they are regarded as
justifying or not justifying particular rules likewise is. The idea, then, is
that when there is a disagreement, particularly at the appellate level, the
disagreement is basically whether a particular rule ought to be applied,
or this rule rather than that rule, not because there is a doubt that
it counts as a rule, but because lawyers and judges on opposite sides
deeply disagree about whether on the best understanding of the con-
troversial core principles a decision this way or that is fundamentally
in keeping with the commitments those principles express. I think this
picture of disagreement, at least in the law of trusts, is pretty much
wholly misguided.
Here, in outline, is why: rst, as I shall show by way of an example in
a moment, the sorts of disagreements typical in the law of trusts just do
not look like this kind of deep disagreement. Rather, the disagreements
are over the soundness of competing legal analyses; and showing the
aw in a legal analysis normally amounts to showing that the analysis is
straightforwardly mistaken in some way. Secondly, unlike the standard
pictures characterisation of legal rules, it is not the case that the rules
of trusts law are easy to learn and apply. Learning the law of trusts, in
the sense of learning to apply its rules to fact situations, is hard.
6
Finally,
the principles of trusts law are really just its constitutive or foundational
rules; what makes a principle of trusts law a principle which organises
the more particular rules is not that it states some abstract moral value
or theoretical principle, say of economic theory, but because it is crucial
for making the trust the kind of legal thing it is. An example of the sort
of constitutive or foundational rule I take to be central to the structure
of trusts law is this:
The benecial interest in the trust property lies with the beneciary, not the
trustee so, for example, the trust property is not available for distribution by a
trustees trustee in bankruptcy to the trustees creditors.
If you do not understand the centrality of this principle in trusts law doc-
trine, you simply do not understand what a trust is. But this is, quite
clearly, a kind of central, constitutive rule of the law of trusts; it doesnt
reveal any guiding abstraction which explains why the law of trusts has
the character it has from some moral or theoretical perspective. It just tells
6
As generations of students, and their teachers, will be only too happy to tell you.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
658 JE Penner
you that one of the chief functions of the trust is to separate the benecial
interest in assets from the powers that go with having title to those assets.
Let me now turn to a trust decision in order to show what I think
counts as typical disagreement in the law of trusts. The case is the 1995
House of Lords decision in Target Holdings v Redferns.
7
The case con-
cerned a very common form of trust. Target Holdings was a mortgage
lender advancing money to its client to purchase land and, as is typical
in such transactions, it transferred the 1.5 million loan moneys to the
solicitor whose job it was to complete the purchase of the land and
obtain a mortgage over it in Targets favour to secure the repayment of
the loan. In clear breach of trust the solicitor paid the moneys away not
to the vendor of the land, but to a third party. At this point the solici-
tor immediately became liable to restore the trust, by digging into his
own pocket to replace the 1.5 million. Shortly thereafter, however, the
solicitor did manage to get the third party to transfer the 1.5 million
into the hands of the vendor, and did manage to get a mortgage over
the land in Targets favour. As it turned out, the land was worth much
less than the purchase price, and when the borrower defaulted on the
mortgage payments Target was only able to realise 500,000 on the sale
of the land, so it lost 1 million. Target sued the solicitors rm for the
loss. It claimed that because the solicitor breached the trust, and upon
that breach immediately came under a liability to repay 1.5 million,
the solicitor had no defence to a claim for summary judgment for 1.5
million, less the 500,000 Target got from the sale. Now, although it
seemed pretty evident that a fraud of some kind lay in the background,
because the case came to the court by way of an application for sum-
mary judgment, the issue of fraud was not before the court, and it had
to be assumed that the solicitor had simply made a non-fraudulent error
in paying away the money to the third party.
The issue I want to raise here is the House of Lords analysis of the
case, and Lord Milletts later extra-judicial criticism of it. The House of
Lords denied Targets claim on summary judgment, on the basis that this
was a claim for consequential loss. It assessed whether Targets loss could
properly be regarded as the consequence of the solicitors breach of trust.
That is, it invoked principles of causation and remoteness to say that, on
a but-for basis, the loss was not a consequence of the solicitors breach,
but rather was a loss arising because of Targets initial decision to lend
7
[1996] AC 421.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
An Untheory of the Law of Trusts 659
1.5 million on a property worth only half that at the time of sale; the
cause of that loss was either that Target had been fraudulently induced
by its borrower to make the loan on a property of insufcient value, or
a decline in the property market. Since the Court could not adjudicate
the fraud claim, the loss could only be attributed to the decline in the
property market, for which the solicitor was, of course, not liable.
Whilst Lord Millett
8
would also have denied Targets claim, he argued
that the basis for doing so should not have been as decided in the House
of Lords. He argued that questions about consequential loss, causation,
and remoteness, were simply irrelevant. The proper analysis was this:
when a trustee breaches a trust by paying away the trust money to some-
one not entitled, he immediately becomes liable to restore the trust. If
the breach cannot be remedied by the trustees own action, ie he can-
not undo the transaction and get the money back, then the only thing
he can do, and must do, is cough up the money himself from his own
resources. But he may, if he can, restore the trust in any way in keeping
with its terms. In this case, the solicitor did that by getting done what he
ought to have done in the rst place, by ensuring that the trust money
was paid to the vendor of the land and obtaining a mortgage over the
land in favour of Target. The solicitor had repaired his breach, and so,
by the time of trial, the solicitor was no longer in breach, and so there
was no breach to be complained of.
There are three things I want to note from this analysis. First, Lord
Milletts criticism is easily described. He claimed that the House of
Lords got the law wrong. That is, they applied a faulty legal analysis.
He did not say that their analysis revealed any lack of understanding
of the core principles of trust law. They just got the law wrong, applied
the wrong legal rules. Secondly, he was concerned to establish this even
though the decision in the case was right. It is sometimes said by legal
theorists that judicial decisions are important merely for the result of the
case that the result of a case has binding force, not the reasoning the
judge employed to get to the result.
9
Lord Millett clearly doesnt think
8
P Millett, Equitys place in the law of commerce (1998) 114 LQR 214 at 2237.
9
Simmonds and Dworkin, for example; they argue that what justies a particular
decision is its falling within a theory or conception of justice which justies the particular
area of law, not whatever reasons a judge himself gave for it (though those reasons should
be accorded some respect). See NE Simmonds, The Decline of Juridical Reason (Man-
chester: Manchester University Press, 1984), 11718; R Dworkin, Taking Rights Seri-
ously (London: Duckworth, 1977), 113, 115, 11819; Laws Empire (London: Fontana,
1986), 2478.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
660 JE Penner
this is right, and neither do I. The reason I particularly mention the
point is that this view about the bindingness of the result, not the judges
reasoning, may go hand in hand with the standard picture,
10
viz, the
actual decision in a case must be given weight on some very general
principle, such as like cases must be decided alike,
11
or in promotion
of legal certainty,
12
whereas the substantive reasoning deserves weight
only if it does indeed represent a sound elaboration of the more particu-
lar principles underlying the branch of law in question. Thirdly, Lord
10
I am grateful to George Letsas for making me try to make better sense of this.
11
For Dworkin, this view about the bindingness of the reasons given by a judge
apparently ows from his general position on the bindingness of precedent, which is a
kind of like cases must be decided alike principle; the ultimate question in common law
litigation is whether it is fair for the government, having intervened in the way it did
in the rst case, to refuse its aid in the second (Dworkin, Taking Rights Seriously, 113).
Whether any such principle bears the moral weight Dworkin needs it to is questionable
(see D Lyons, Formal Justice (1973) 58 Cornell LR 833; J Gardner, The Virtue of Jus-
tice and the Character of Law (2000) 53 Current Legal Problems 1), but the point to be
taken here is that this fairness claim is transparent in the sense that it depends entirely
on what in truth makes the cases alike or unalike, irrespective of what the judge in the
case himself believed to be the facts pertinent to rendering that decision, or the way he
reasoned from them to a result. The gist of my reason for thinking otherwise, as I develop
below, is that it seems to me that the logic of legal doctrine, at least in bodies of law
like the law of trusts, is more like the logic of invention than the logic of discovery; that
is, legal doctrine aims to provide a workable body of rules in order to secure some com-
plex good or prevent conicts arising, the provision of which will always involve choices
amongst incommensurables. In such cases decisions are not, for the purposes of legal
doctrine, at least, important principally for the results of the case but for the excellence
or lack thereof in the judges grasp of the problem the case presents. On this view, accord-
ingly, a judges analysis in a case may be impeccable and should be followed even though
the decision itself is wrong, for example, because the judge paid insufcient attention to
certain facts or gave them dubious weight. See, eg, my discussions of Boardman v Phipps
in JE Penner, The Law of Trusts (7th edn, Oxford: OUP, 2010), at 12.512.13 and of
Royal Brunei Airlines v Tan in JE Penner, Dishonest Assistance Revisited Barlow Clowes
v Eurotrust International (2006) 20 Trust Law International 122.
12
Stephen Guest suggested to me that in areas of law like property and trusts, the only
real underlying principle is one of legal certainty, the idea being that in matters of prop-
erty, certainty is especially important for subjects of the law when they rely on legal rules
to plan their economic affairs. This is a fascinating suggestion, and merits more scrutiny
that I can give it here, but three off-the-cuff responses: rst, this seems to dovetail with,
not contradict, the claims I shall make below about the way trusts law doctrine is more
invention than discovery, in the sense that the rules of trusts law constitute a facilita-
tive device: if you are uncertain about the rules of the game, the game is surely awry;
secondly, though, by the same token, such a general principle could not underpin in any
signicant way the particular features which make the trust what it is; nally, although
I know of no way of measuring whether one area of legal doctrine embraces certainty to a
greater degree than another, I do not think that the law of trusts, as it actually plays out in
the cases, is actually more certain than is, say, the law of torts or restitution or contract.

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OUP CORRECTED PROOF FINALS, 11/27/2010, SPi
An Untheory of the Law of Trusts 661
Milletts criticism implied, if not stated explicitly, that there was a single
right answer, or single right legal analysis, ie his.
Now I want to claim that the type of disagreement that this sort of
criticism reects is not just typical in the law of trusts, but by far the
most predominant form of disagreement. The typical judicial decision
in the law of trusts disposes of the losing sides legal analysis by pointing
out not that it is somehow less good than the winning sides, as if there
was some sort of sliding scale of worst to best legal analysis,
13
but that
it reveals a mistake, an error in legal analysis. I cannot prove the truth
of this proposition in the space of one essay (although Ive run through
a few cases of this which I regard as typical in a footnote), but if I may
be humoured for the time being on this point, let us see where, if true,
it might lead us.
14
13
Or rather, if there is such a sliding scale it is one of discrete units, not clinal, in the
sense that a better legal analysis makes fewer legal mistakes than a worse one and the best
legal analysis makes none at all. Of course some mistakes are bigger, more signicant,
than others, but this doesnt turn the scale into a clinal one any more than there being
different-sized potatoes in a sack means that you cannot count the potatoes.
14
A brief overview of some cases and the nature of the disagreement will help to
establish the sort of disagreement I am concerned with. In Foskett v McKeown [2001] 1
AC 102 the House of Lords split 3:2, the majority holding that the beneciaries of a trust
were entitled to trace their interests under a trust into the proceeds of an insurance policy,
some of the premiums of which were paid using the trust money. The minority took the
view that the beneciaries should be restricted to a lien over the proceeds to recover a sum
equivalent to the amount wrongly expended by the trustee on the insurance premiums.
What is clear about the case is that the majority, led by Lord Millett, was concerned to
show that the claim for the lien was misconceived as a legal analysis. Interestingly, Lord
Browne-Wilkinson said that he had changed his mind after reading the draft speech of
Lord Millett, who began by saying: This is a textbook example of tracing through mixed
substitutions. In the now classic resulting trusts case of Vandervell v IRC [1967] 2 AC
291 Lord Upjohn criticised the reasoning of the Court of Appeal for mistakenly apply-
ing the presumption of resulting trust in a case where it did not belong. The case was,
in his view (and I would say correctly), to be analysed as a case of what is now know as
an automatic resulting trust. In Westdeutsche Landesbank v Islington LBC [1996] AC 69
Lord Browne-Wilkinson dismissed the plaintiff s claim that the local authority held a
payment made under a void contract on resulting trust, claiming that the argument was
simply misconceived: the plaintiff had no equitable interest in its own money which it
could have retained following the payment, and on orthodox trust principles there was
no basis for concluding that the defendant authority did not receive the money for its
own benecial use. In Criterion Properties plc v Stratford UK Properties [2004] UKHL
28 [2004] 1 WLR 1846 [4], Lord Nicholls criticised the Court of Appeal in BCCI v
Akindele [2001] Ch 437, saying that it fell into error by applying the test for knowing
receipt before asking whether the claimant bank was bound by the ostensive authority
of its ofcers in entering into the contract of investment with the defendant. A very
recent Australian example is John Alexanders Clubs Pty Ltd v White City Tennis Club
Ltd [2010] HCA 19, where the High Court of Australia criticised the judgment of the

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First of all, it makes us understand that judgment is required to exe-
cute a legal analysis, and that even the best trusts lawyers and judges
can be shown to make mistakes. Secondly, the explanation of these mis-
takes is typically what one might call demonstrative. That is, lawyers with
expertise in the area very generally agree that a mistake, once explained,
is a mistake. Disagreement ends at that point.
15
This, I think, makes
plain two matters which I think the standard picture of disagreement
gets quite wrong. First, learning to apply the rules of trusts law is dif-
cult. Very good students nd the subject difcult, and marking problem
questions in trusts scripts is often just an exercise in noting where the
students legal analysis was right and where it was wrong; not, I would
emphasise, either weak or strong or facile or thoughtful but just plainly
right or wrong. And this sort of error, ie demonstrable error, continues
all the way up to the highest courts (something about which I worry,
and shall return to later); disagreement in trusts law is overwhelmingly
about error, not clashes of value, or clashes of theoretical disagreement.
By saying this I am not saying that there are not controversies in the
law of trusts that remain unsettled; we have plenty. What I want to sug-
gest, however, is that the main reason for this is that exercises of legal
judgment, exercises in legal analysis, are difcult and time-consuming,
and there are only so many of us around. As a result, it is typical, both
in obiter dicta and in academic and professional commentary to take
legal analysis in controversial areas, in particular new areas of law, as
provisional. To borrow an expression from the sciences, the spirit is one
of more research is required. To my mind, this is the best explanation
of the controversy, now a couple of decades old, about whether the law
concerning remedies for breach of trust, and the remedies available in
cases of unjust enrichment at common law, should be aligned in some
way. Notice I say should be aligned. No one familiar with that litera-
ture doubts that this would work something of a revolution in the law,
New South Wales Supreme Court virtually line by line, cataloguing the errors into which
it had fallen. I could literally go on citing cases where the disagreement between judges
and different courts was over their, for want of a better term, blackletter legal analyses.
These cases are the very bread and butter of the law of trusts. Foskett, Vandervell, Akin-
dele, Westdeutsche, are all examined in detail by undergraduate students.
15
This is true even when the lawyers disagree about an overall analysis. That a good
legal point is a good legal point is generally recognised as such, although taken together
with other considerations a point acknowledged to be good may not tip one away from,
say, thinking a restitutionary analysis of the law of tracing is ultimately more coherent
than a fund analysis of tracing.

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in the sense that certain rules of law would have to be discarded and
others introduced. But the programme is not, on that account, meant
to be akin to a legislative reform; rather, the unjust enrichment analysis
competes with what might be called a traditional analysis based upon
claims about which really provides the superior legal analysis, and the
controversy has progressed in large part by winnowing out bad aspects
of the various legal arguments for and against, revealing past mistakes
in analysis. Peter Birks was a model of the legal scholar in this respect,
importantly conceding on several matters that an analysis he had once
set out needed to be amended or totally discarded because it became
clear to him that it was mistaken. But the point to take away is that
this involves a great deal of concentrated effort, both in nding links
with other strands of case law, while at the same time being critical
about analogies between this cause of action and that, and doing a fair
amount of what might be called practical legal history, that is, reading
lines of cases to make sense of them in terms of the context in which
they arose, and the disputes they were meant to resolve. I do not think
any serious scholar in the law of trusts would dream of neglecting this
socio-historical aspect of the law of trusts in trying to make sense of
trusts doctrine.
16
Neither am I denying, by claiming that claims of mistake typify disa-
greement in the law of trusts, that there are cases where the court simply
lays down a new rule to meet a perceived aw in the old law. Schmidt
v Rosewood Trust Ltd
17
is such a case. There the Privy Council decided
that a traditional distinction drawn between beneciaries of a trust and
mere objects of a power of appointment, that the former but not the
latter had rights to receive information about the trust from the trustees,
was no longer suitable in the case of modern family trusts, particularly
of the offshore kind.
The claim, to be clear, is that the standard picture does not seem to
me to be accurate in describing disagreements about the correct analysis
in trusts law because it regards the source of disagreement in lying at the
16
I therefore part company with Holmes when he says: The reports of a given juris-
diction in the course of a generation take up pretty much the whole body of the law, and
restate it from the present point of view. We could reconstruct the corpus from them if
all that went before were burned. (OW Holmes, The Path of the Law (189697) 10
Harv LR 457.) This, as regards the law of trusts at least, is the sheerest nonsense. Holmes
seems to resile a little from this view later on, at 476.
17
[2003] UKPC 26, [2003] 2 AC 709.

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level of core principles rather than at the level of rules. I do not disagree
with the standard picture that there are core principles, but what their
character and status is. It might help at this point to give some examples
of some core trust principles:
a. (To repeat the example I gave above) the benecial interest in the
trust property lies with the beneciary,
18
not the trustee, so, for
example, the trust property is not available for distribution by a trus-
tees trustee in bankruptcy to the trustees creditors.
b. Correlatively, the trustee must keep the trust property separate from
his own and from other property he holds on trust; he must not,
therefore, mix the trust property with other property so as to make
it unidentiable, for if he does that, he destroys the trust, for a trust
can only exist over identiable assets.
19
c. The primary obligation of the trustee is to account to the beneciar-
ies for what he has done with the trust property.
d. While the settlor creates the trust, it is the trust beneciaries, not the
settlor, who are entitled to enforce the trust against the trustee, thus
the right duty relationship is one of trustee to beneciary, not trustee
to settlor, which shows that the trust is not a contract.
20
e. Equity regards the beneciarys interest in the trust property as an
interest which binds third parties, such as the trustees trustee in
bankruptcy as in (a) above, but also any third party to which the trust
property has been transferred in breach of trust save for a third party
who is a bona de purchaser without notice that the trust property
was transferred in breach of trust.
21
18
It is an interesting question how far this principle was modied by McPhail v
Doulton [1971] AC 424, which held that a discretionary trust for an unlistable class of
objects was valid, that is, held valid a trust in which no person or group of persons acting
collectively had any immediate benecial interest in the trust assets.
19
Certain cases have nibbled at the margins of this principle, most recently in Re
Lehman Brothers International (Europe) [2009] EWHC 3228 (Ch); see JE Penner, The
Law of Trusts (7th edn, Oxford: OUP, 2010), 7.26, 7.59.
20
Ian Williams informs me that English lawyers in the 17th and 18th centuries, under
the inuence of civilian intellectual successes in making sense of the law, tried to ration-
alise the trust as a kind of contract. If they had managed to do so to general approval, the
English law of trusts would no doubt look very different today.
21
While there is universal agreement on this, there is a deep controversy about its
rationale. See, for a view from either side, R Chambers, Two Kinds of Enrichment,
J Penner, Value, Property, and Unjust Enrichment: Trusts of Traceable Proceeds, both
in R Chambers, C Mitchell, and J Penner (eds), The Philosophical Foundations of Unjust
Enrichment (Oxford: OUP, 2009), at 240 and 304 respectively.

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The point about these principles, barring legally crazy decisions, a cou-
ple of which I shall come to later on, is that they are actually never in
dispute. Any litigant who wanted to dispute principles of trust law like
this would have, to put it mildly, a mountain to climb. These principles
are core, because they are constitutive; they make the trust the kind of
legal animal it is. Rather than guiding abstractions, these core principles
are the central organising rules, as it were.
To my mind, the obvious way to make sense of this kind of core prin-
ciple, and show that, in the law of trusts at least, the standard picture of
the structure of legal doctrine is erroneous, is to consider HLA Harts
most important contribution to legal philosophy. Although I dont think
Hart emphasised this point sufciently, and for all I know would not
have done if it had occurred to him,
22
according to my reading of The
Concept of Law
23
its most innovative and best claim is that the contribu-
tion of law to human life is positive and facilitative, in this sense: the
law is not here to tell us what morality requires us to do or not do. The
law is here to help us, through the creation of rules backed up by institu-
tional administration, to achieve what we are otherwise morally obliged
or entitled to do, but cannot do without coordinating our actions with
others. Both the standard picture, which relates law to core moral prin-
ciples, and imperatival, sanction theories of law draw our attention away
from this, which might otherwise be put as saying that the laws central
function is to institutionalise collective or communal practical reason
that allows people to coordinate their activity to deal with offenders, to
establish markets, to set the boundaries of property rights, and so much
else. The law of trusts is a pre-eminent example of the laws facilitative
function: the law of trusts has provided different facilities to its users
over the course of legal history, to allow individuals to leave property
otherwise than by the law of primogeniture, to avoid irksome feudal
incidents, to avoid taxes, to set up business ventures, and much else, but
the principal core function is to arrange for the structuring of benecial
interests in property in creative ways not permitted at common law.
Understood in this way the trust is a very particular sort of legal device,
the use of which by subjects of the law is essentially facilitative, to allow
22
Dennis Klimchuk has doubts that Ive done my Hart exegesis right. I share those
doubts.
23
HLA Hart, The Concept of Law ( J Raz and P Bullock eds) (2nd edn, Oxford:
Clarendon Press, 1977).

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them to pursue projects not capable of being pursued otherwise, and, in
particular, to resolve conicts arising out of that pursuit.
24
Understood as a legal device of this kind, it should not be surprising
that one almost never encounters legal disagreement as to its core rules
or principles, for as an articial, facilitative construct of this kind, to
dispute the core rules or principles would be to dispute the existence of
the device itself. It is nothing but its core rules and principles. The law
is not a game, but like chess, where to abandon the rules of chess would
mean not playing chess, to dispute the core rules of trusts law would be
to abandon the trust as a legal device.
This point should not be oversold. I make the analogy to the rules of
a game in order to provide one sense of the idea that, whatever may be
true about disagreement in other areas of law, it is perfectly obvious why
it should be unlikely that deep disagreement about the core principles
and rules of trust law should arise with any frequency.
Of course, it does not follow that there cannot be deep, morally moti-
vated disagreements about the core principles of a legal device like the
law of trusts. These are easy to nd, and familiar, even for workaday
trusts practitioners. For example, many civilians apparently regard the
trust as a positively malign device whose chief functions are the defraud-
ing of creditors and heirs and the avoidance of taxation. Closer to home,
it is easy to think that dealing with the economic rights and wrongs of
separating non-married couples by directing them to ght over the fam-
ily home by way of trying to establish their relative rights in the thing
by way of constructive trust doctrine is madness. But such views simply
have no place in legal argument in, to emphasis the point, trusts law
cases, cases involving the law of trusts. In this the law of trusts is no
different than, say, the law of gifts. Many moral political philosophers,
24
There is a great deal I should probably say here about the precise way in which the
law works to coordinate the behaviour of its subjects to allow them to resolve disputes
and realise valuable forms of social cooperation, but let me just mention two things.
Nothing I say here is meant to suggest that the laws facilitative function is merely to
provide conventional solutions to coordination problems, narrowly understood. On this
point I am with Green against Marmor; see L Green, The Authority of the State (Oxford:
Clarendon Press, 1988), ch 4; A Marmor, Social Convention: From Language to Law
(Princeton: Princeton University Press, 2009) chs 3, 7. Rather the idea, which is devel-
oped to an extent in the text below, is that there lies an expertise (owing to the experience
of practice) in resolving social conicts, conicts in particular that arise when people are
pursuing valuable projects, like working together, using property as the site of valuable
activities, raising money through taxation to pay for public goods, and so on. The laws
most valuable function is applying that problem-solving expertise on an ongoing basis.

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for example, left libertarians, think gifts smelly and inheritance even
smellier.
25
But such views have no standing in court, even though they
are just the right kind of moral views about which there is ample dis-
agreement, that is, they are views sufciently controversial to explain
thoroughgoing disagreement over the law of gifts or inheritance, for
example, if only they could be aired in court. The reason why they can-
not be is simply that the horse has bolted. The law of gifts is facilitative.
It endows owners of property with the power to transfer what they own
to others without receiving consideration in return. As a consequence,
people make foolish gifts. Some perhaps make immoral gifts. Well, so
thinks the law, so be it. Not my problem. That Rubicon was crossed
many centuries ago, and only primary legislation is going to abolish the
law of gifts now. I take it these points are fairly obvious, but the lesson to
which they lead, perhaps, is less so. The lesson, I think, is that we must
look elsewhere than disagreements over controversial moral principles
to characterise properly legal disagreement in these sorts of law, such as
the law of trusts.
With that in mind we can turn to two points which will take us to a
conclusion of sorts. First, I must provide a fuller, though still sketchy,
account of the kind of disagreement that we do nd in the law of trusts.
Secondly, following on from this, I shall say something about my legal
nightmare, which is a distinct possibility if what I have said about the
nature of legal disagreement, in contrast to the way it is explained by the
standard picture, is on the right lines.
As to the former, as I have written elsewhere,
26
a perhaps fruitful anal-
ogy to the sort of learning that is trusts law doctrine is with an applied
science, like civil engineering. While you might say that the body of
knowledge that is civil engineering is somehow dependent on the prin-
ciples of physics, it is also true that the science of physics contains no
principles of bridge building.
27
In the same way, while any area of the
law is necessarily connected to morality in the sense that it deals with
signicant matters of humans getting on with one another, so signi-
cant that it will back up its general rules and its individual resolutions
of conicts with force, there is nothing that morality per se, understood
as those general principles of conduct which we must all recognise, can
25
See, for example, M Otsuka, Libertarianism Without Inequality (Oxford: OUP,
2003), at 378.
26
See Decent Burials for Dead Concepts, n 1 above.
27
Ibid, at 3249.

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do to dictate how the law of trusts should work. While I dont think the
analogy ought to be pressed very hard, the reason is the same in both
cases. Both bridges and the law of trusts are primarily facilitative things,
ways of allowing us to achieve goals which are not themselves dictated
either by physics or morality, respectively. Or to put it another way, both
civil engineering and the law of trusts are essentially concerned not with
discovery, but invention.
To look at the law of trusts this way is really to do no more than
take seriously the idea that trust doctrine constitutes a kind of norma-
tive technology. This idea may best be put, I suggest, in Razian terms.
According to Raz, there are two basic cases in which it would be reason-
able to defer to a political authority. The rst, and most prominent one
for law, according to Raz, is that a de facto authority may be best placed
to solve coordination problems, coordination problems broadly under-
stood. So take the case of a dispute over an agreement. If there were no
authoritative enforcement mechanism in place which determines the
dispute, coercively if necessary, then in any case of a dispute over an
agreement the parties would be left to self-help of various kinds. The
authoritative claim that the law makes is that the parties are better able
to achieve a fair resolution to their dispute by attorning to the author-
ity than left to their own devices. So the law is a moral authority of a
particular kind, for by solving the problem of coordinating responses
to various kinds of conict, the parties are more likely to achieve their
pre-existing moral obligation to resolve their dispute fairly by attorning
to the authority than by trying to sort it out themselves.
But there is another ground of authority, that of the expert. The rea-
son why a doctor is a medical authority for me is that he knows medicine
and I dont. I do better when I am unwell to follow the doctors advice
than try to diagnose and treat myself. The law can have the authority
of the expert, in particular cases. So, for example, familiar sorts of laws
such as health and safety regulation, like the requirement to wear safety
belts, can be understood along these lines. The legislature can consult
the relevant experts, and pass laws reecting their expertise. In this way,
most people are better served by following the regulations than by trying
to sort out the relevant science themselves and decide whether to wear
safety belts. Again, this is perfectly straightforward.
We have in hand, then, a clear analytical distinction between two
grounds of political authority. One turns on the laws expertise, or rather
its ability to embody expertise, and the other is based on the idea that
the law better solves a coordination problem which the subjects of the

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law have an independent moral duty to secure, if only they could, ie the
fair resolution of disputes. What I shall now claim is that, to the extent
these are pure alternatives, the law of trusts could not be justied in its
present form as authoritative.
Take rst a claim that the law of trusts could be understood as the
laws embodying a sort of extra-legal expertise. Extra-legal is important.
On the expertise model, the expertise is not legal expertise; it is some
sort of scientic, or sociological, or economic, or moral expertise, exper-
tise which the law embodies when it frames laws to reect it. Clearly,
it would be preposterous to say that a branch of private law such as the
law of trusts is authoritative because the organs of the state, in this case
judges, have gathered particular expertise in free-standing subjects of
expert knowledge such as economics or moral philosophy, so that direc-
tives issued by the state are authoritative for that reason. If the history of
the law of trusts tells us anything it tells us that. But the alternative is no
more enticing. For it is equally preposterous to say that the law of trusts
justies itself on a faute de mieux principle, ie that authoritative dispute
resolution is better than self-help, so subjects of the law are bound by
what the law says on that basis alone.
Something that Professor Leslie Green has stressed helps to show
why.
28
This way of looking at things, this faute de mieux principle, sug-
gests that the choice of any coordination solution is equally good; it
matters not whether we drive on the left or on the right so long as we
decide to drive on one of them. If the laws main function was merely to
identify one equally acceptable alternative amongst others which solve
the problem, then the laws coercive force would be mostly peripheral,
or tangential, for it would be perverse to violate a drive on the right
convention in England even in the absence of any sanction. Private law
does not merely say that it provides a solution to the coordination prob-
lems faced by its subjects, with which the subjects of the law will, if
rational, happily comply so long as the law makes a choice, any choice,
but that it provides a good solution to the problem amongst competing
alternatives amongst which reasonable people can and do disagree, often
vehemently. For if the solution is not one of the which side to drive on
kind, then the laws claim must be more substantial than merely saying
that it makes one alternative salient. It makes the claim that its choice
is, if not the right one, then at least a sound one.
28
L Green, The Authority of the State, above n 24, ch 4.

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In any case, I am not saying the law is justied in such claims. It may
well be that, despite what the law says, the only possible authoritative
justication to be had is on the faute de mieux principle, in the sense
that any authoritative resolution is better than none at all. But in the
case of any modern legal system with a tradition of legal training and
scholarship, it is the implicit claim of its lawyers, judges, and teachers
that certain ways of conceiving problems arising from social disputes are
distinctly better than others, for all kinds of reasons, prominent among
them are reasons which we might broadly frame as moral reasons.
So, let us pursue the thought that law claims to resolve problems
of social conict in a way whose authority depends upon its doing so
well. We are thrown back on Razs second claim for the justication of
authorities, that of expertise. But, rather than any moral or economic
extra-legal expertise this expertise just is that in choosing between differ-
ent alternatives for the solution of coordination problems.
29
This exper-
tise is relevant in just the context where individuals may justiably, in
the absence of any justied claim to extra-legal expertise of any particu-
lar kind, for there is none, prefer an alternative course of action to one
which has become or been claimed by the law to be the solution to the
coordination problem at hand. If it exists, this kind of expertise, I take
it, would distinguish between better or worse solutions to coordination
problems, that is, between good inventions and poor ones.
On this view, the law regards itself as the embodiment of a sort of
learning which, owing to its experience and institutionally transmitted
memory, endows it with a surer grasp of human and social nature in
the areas of endeavour and conict in which it specialises, such that
the solutions it comes up with are, by and large, and for the most part,
superior to those which might be proposed by its lay subjects.
30
And
29
It is not clear to me that Raz explicitly recognises an expertise in selecting better
rather than worse solutions to coordination problems, but there is at least a strong sugges-
tion of that in Joseph Raz, Between Authority and Interpretation (Oxford: OUP, 2009), at
153, when he says: Such views overlook quite a number of facts central to the function
of legitimate political authorities. First, they can satisfy the normal justication thesis not
only by securing coordination, but also by having more reliable judgment regarding the
best options, given the circumstances, and that in their normal activities, expertise and
coordination are inextricably mixed.
30
For a previous crack at trying to characterise this sort of expertise, see JE Pen-
ner, Legal Reasoning and the Authority of Law in S Paulson, T Pogge, and L Meyer
(eds), Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of
Joseph Raz (Oxford: OUP, 2003), 7197. Leslie Green has raised some important dif-
culties with the view I expressed there (L Green, Three Themes from Raz (2005) 25

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this returns us to the issue of coercion. It cannot be right to follow
the dictates of the law just because the law says so without more. The
law must say that its choice of alternative (in the particular context of
the society, including its previous laws, etc) is, if not the best, at least
sensible and not, all things considered, wrong. It is now a commonplace
in social theory that it can be fruitful to regard human social institutions as
social technologies, and what I am suggesting is that this is not just a facon
de parler; it truthfully reveals the nature of the authority that a branch of law
like the law of trusts claims to have. Its authority lies in its expertise in solving
coordination problems of certain kinds, largely because they are of its own
making. If you create a technology which has certain kinds of potential,
and these potentialities will, in certain circumstances, give rise to various
problems, then gaining experience of sorting out these problems will make
one an expert in doing so, and so the law develops. Consider the chapters
of a typical trusts law textbook. Some concern the rules about creating
trusts, some the different purposes to which they can be put, some what to
do when things go wrong. Thats just what one would expect if the law of
trusts is essentially facilitative: hand people a facility and see what problems
arise when they make (or try to make) use of it. And who better to sort
out these problems than the very people who made up the rules in the
rst place?
Perhaps an example of another branch of law will make this perspec-
tive even more vivid. Consider what the law of taxation might contrib-
ute if seen as a body of expertise about a normative social technology.
We might all, on the basis of those moral principles which seem most
sound to us, wish to devise what we think is a thoroughly sound tax law.
Now, does anyone after a moments thought believe that he could do a
good job of that, just from scratch, as it were? That is, just by consulting
Oxford J Leg Studies 503), and this is not the place to address them, but I will respond to
one point he made (at 515): I claim that judges and lawyers, by virtue of their expertise,
are participants in laws authority, including the authority to make law, and Green nds
this obviously implausible. As he puts it, most of us dont think that lawyers as such have
any authority to make law, and we would regard any argument that entail that they do
as suspect. But my claim is not that lawyers qua ofcials have any legislative authority,
but that, qua experts, in the same way that authors of learned articles are experts qua
experts, they participate in the inculcation and transmission of the expertise of the law
just as much as do judges. They are essential gures in the institutional framework which
underpins whatever expertise the law has. To the extent that expertise matters, any and
all experts, or at least any and all experts who make their views know, participate in the
authoritative relations between authority and subject. In matters of expertise, how could
it be otherwise?

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his moral principles? Without any intention whatsoever to reproduce
any of the current tax law, would it not be rationally (and for that mat-
ter, morally) imperative to consult people who know something about
the business of taxation? Does our novice think that what he intends to
tax, whether capital gains or income or sales or gifts or inheritance or
wealth or luxuries or anything else will be self-dening? Does he think
that anti-avoidance mechanisms, the rules about residence or domicile,
the contours of the concept of allowable expense, will just appear to
him after a bit of reection? If so, then our novice is not merely green
but also cabbage-headed. And all this would be precisely so even if, per
impossibile, there was no controversy whatsoever about the extra-legal
moral justication for taxation.
I think the lesson applies equally to the law of trusts, and this shows
us the nature of disagreement in trusts cases. The expertise in solving
normative problems of this kind involves a kind of creative capacity, just
as the law of taxation has managed to nd various ways of creating rules
to make taxation, though by no means perfect, at least, by and large,
workable. Having thought about it for a moment, would anyone deny
that, in difcult cases at least, legal analysis not only involves a good
memory of the cases but an imaginative capacity, to provide illuminat-
ing legal analyses, which show how these facts can be make to t within
the law, occasionally showing that the right legal analysis leads to an
unsatifactory result, prompting a change, or renement in the rules to
make them work?
These thoughts bring me to what I referred to above as my legal
nightmare. What would the law of trusts, or any other branch of law be
like, if we managed to lose the expertise I have just spoken of ?
One way of thinking about this is to think of our losing the tools of
our trade. Think of the development of the knowledge of bridge build-
ing, our engineering and architecture. It has taken centuries to develop
certain technologies, and the continuity of technological competence
and expertise is not guaranteed. Dark ages did succeed the fall of the
Roman Empire, lets remember. And I want to suggest that it is not
impossible even now that we might lose the tools of our trade. The
obvious way in which this could occur is that the knowledge we are con-
cerned with becomes just too hard for most of us (and by us I mean us
lawyers) successfully to make good sense of it, and pass it on successfully
to the next generation. Is the law of trusts too hard ? In a moment I shall
look at a couple of cases, but this worry can be intensied by thinking
as well about the inuence of the standard picture. Under its inuence,

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we may think that doctrine is just a body of rules, rules which require
no great skill or acumen to manipulate, that legal analysis is essentially
facile, the stuff of student exam problem questions. The real intellectual
effort belongs to the arena in which the extra-legal core principles are
examined. Under this inuence, legal education would be transformed;
perhaps the transformation is already underway. From the perspective
of the standard picture, agonising about decisions in cases like Vander-
vell or Westdeutsche is not really proper work for the better lawyer, law
teacher, or student. What they all really need is some expertise in moral
philosophy, or, if youd rather, economics. Only that sort of study will
give them a grip on the true underlying legal principles. If I am right,
however, about the nature of the core principles of trusts law, and the
nature of legal analysis and disagreement, that transformation in legal
education and thought would just hasten (has already hastened?) my
nightmare along.
In the very confused decision of the BCCA in 2009 in Watters Estate
v BC (Registrar of the New Westminster Land Title District),
31
a unani-
mous British Columbia Court of Appeal decided that a bare trustee
did not have good safe-holding and marketable title (GSHMT) for
the purpose of registration under the Torrens registration system in that
province. GSHMT is basically title which can be transferred to pur-
chasers under the Torrens system whereby purchasers are protected, not
having to go behind the legal title to ensure that interests, like trust
interests, have been properly dealt with by the trustees. To deny trustees
the right to hold land under this title is basically to abolish the cur-
tain principle, a protection which has arisen over the last 150 years for
purchasers from trustees, both in the interests of purchasers and trust
beneciaries themselves. The worst thing about this decision is that the
Court plainly revealed that it neither understood the curtain principle,
nor understood the difference between an equitable and a legal interest.
It seemed at one stage to suggest that what the trustees sought to register
was the benecial interests under the trust, or perhaps that this was the
interest that they were required to register. I do not know how big a nui-
sance this case will turn out to be for trustees and their lawyers in British
Columbia, but that, of course, is not the point. The worry is that appel-
late judges were able to get the law quite so wrong. If judges, following
what as far as I can tell from the report were sufcient submissions from
31
[2009] BCCA 192, 48 ETR (3d) 1, [2009] 6 WWR 217.

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counsel, are unable to avoid very worrying errors of this kind, then we
should start to fret.
The second case is the 2008 US Supreme Courts decision in Sprint
Communications v APCC Services.
32
Here, luckily for US law, the major-
ity got the law right, correctly nding that the assignee of a debt has a
right to sue on the debt in his own name, as owner of that right, irre-
spective of any contractual obligations he might otherwise have to deal
with the proceeds of the debt. The interesting feature of the case is the
dissent by Justice John Roberts, joined by the rest of the Republican
wing of the court. Roberts castigates the majority in the most truculent
terms for the way they have got the law wrong, citing Bob Dylan as
the fount of wisdom for a moral principle which reveals the majoritys
grievous error: When you got nothing, you got nothing to lose.
33
It
is the assignment law/trusts law point that is most interesting, because
the majority made clear that on the analysis Roberts was proposing, a
trustee would have no right to bring actions to preserve the trust assets,
but Justice Roberts appeared not to begin to understand the point begin
made.
These cases are not typical, and I do not mean to pick on particular
decisions from other jurisdictions. I simply know of no decision in Eng-
land that is quite so spectacular as these two. And more to the point,
these two cases do, I think, vividly suggest what is possible.
I have said that the law of trusts provides an interesting example of an
area of law whose authority crucially depends both upon the ability to
solve coordination problems and expertise, partly because some of the
coordination problems involved are of its own making. But if this exper-
tise is over-rened, raised to too high a pitch for many legal practitioners
to make working sense of it, then the laws ofcers are simply not acting
with legitimate authority. I do think that this is a serious issue of legiti-
macy that modern legal systems are bound to address. It may be possible
that the law of trusts, like the law of electronic engineering, is beyond
most people. Worse, the law of trusts may be beyond most lawyers.
I dont mean at all to suggest this in a condescending way. It has to do
with an honest judgment of my own experience teaching and writing in
the subject, and the immense respect I have for the judges in the Court
of Appeal and the House of Lords we have had a pretty good run of
32
(2008) 128 S Ct 2531.
33
Ibid, at 2550.

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exceptional Chancery lawyers in the last few decades, but history may
not repeat itself. Is there not a problem with the legitimacy of the laws
authority, when coercion is used to enforce judgments in a facilitative
area like the law of trusts where, because of the technical difculty of the
subject, no plausible guarantee of expertise can be vouchsafed? I really
do not think this is an idle worry.
But this is the expression of a worry, not a cry of despair. One of the
privileges of teaching at UCL is that I am surrounded by delightfully
clever students who keep me on my toes, as well as delightfully clever
colleagues who also keep me on my toes and, whats more, occasionally
put my feet to the re too. I am happy to conclude by registering my
deep gratitude to UCL for providing me with that situation.

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