Justifying Anglo-American Trusts Law

Abstract

Is the existence of trusts law within Anglo-American law justified? The literature to date does not provide a satisfactory answer. Situating the doctrinal features of trusts law within the liberal tradition of political morality, this paper suggests that trusts law is justified because it enhances personal autonomy in a unique way. It is comprehensively autonomy-enhancing, with express, constructive, and resulting trusts each playing a unique role in achieving this aim. Thus, the law provides a facility for property owners to unilaterally deal with their own property (express trusts), allows individuals the freedom to enlist others in their pursuit of their goals (some constructive trusts), and ensures that only conclusive choices have long-lasting legal effects (other constructive trusts and resulting trusts).

Keywords: Anglo-American; Trusts; Liberalism; Autonomy; Express Trusts; Constructive Trusts; Resulting Trusts

JEL Classification: K1, K10, K11, K19