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

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