Private Law Theory

ABSTRACT
In a recent article (OJLS 2021), Mark Bennett and Adam Hofri claim that the ‘characteristic use’ of trusts is to subvert other areas of law. This is mistaken. For one thing, their theory is sometimes really concerned with those other areas of law, eg, tax. Further, their approach mystifies by framing matters as a conflict between trusts versus property, tax, etc, when determining a system’s real stance instead requires seeing how all relevant legal rules and norms operate in the aggregate. Their theory sometimes also treats different jurisdictions’ laws as if they serve a single legal system, which ignores the reality of jurisdictional competition. This article additionally scrutinises some methodological bases for ‘normative’ theorisation about private law, and then assesses Bennett and Hofri’s arguments about whether the impugned trust laws and practices are justifiable.

Frydrych, David, Characteristic Uses of Trusts: A Response to Bennett and Hofri (April 15, 2024), Law Quarterly Review, volume 140 (July) 2024.