Against Subversion, a Contribution to the Normative Theory of Trust Law

Oxford Journal of Legal Studies, published by Oxford University Press, Forthcoming

Hebrew University of Jerusalem Legal Research Paper 20-25

41 Pages Posted: 21 Aug 2020 Last revised: 24 Aug 2020

See all articles by Mark J. Bennett

Mark J. Bennett

Victoria University of Wellington - Faculty of Law

Adam S. Hofri-Winogradow

Faculty of Law, Hebrew University of Jerusalem

Date Written: November 21, 2019

Abstract

This article closes a gap in the theory of trust law by supplying a normative account of the use of trusts to avoid and subvert other legal norms. While the use of trusts to subvert other law has been a major function thereof since the middle ages, a fact acknowledged by jurists, doctrinal and textbook authors for centuries, theorists of trust law have largely steered clear of this function. We evaluate the two most commonly proffered justifications for the use of trusts to subvert the law: that such use enhances users’ autonomy, and that trusts allow people to avoid or mitigate injustices found in law to which they are subject. We find that such justifications are not plausible in liberal legal systems, and so the subversion use of trusts should be, and usually is, curtailed, principally by anti-subversion norms found outside trust law.

Keywords: Trusts, Trust Law, Subversion, Avoidance, Legal Theory, Trusts Theory

JEL Classification: D14, D31, D63, D64, G23, K10, K11, K19, K35, K42, P14, P48

Suggested Citation

Bennett, Mark J. and Hofri-Winogradow, Adam S., Against Subversion, a Contribution to the Normative Theory of Trust Law (November 21, 2019). Oxford Journal of Legal Studies, published by Oxford University Press, Forthcoming, Hebrew University of Jerusalem Legal Research Paper 20-25, Available at SSRN: https://ssrn.com/abstract=3579955 or http://dx.doi.org/10.2139/ssrn.3579955

Mark J. Bennett (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Adam S. Hofri-Winogradow

Faculty of Law, Hebrew University of Jerusalem ( email )

Mt. Scopus Campus
Jerusalem, 9190501
Israel
523592980 (Phone)
523592980 (Fax)

HOME PAGE: http://en.law.huji.ac.il/people/adam-hofri

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