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Irit, why do you think that trusts which place conditions on how the property settled is used and invested after the settlor’s death can be interpreted as a ‘justifiable extension of the power of ownership’?
Unlike a gift that is conditioned upon death, the trust allows the dead hand of the settlor to dictate decisions about the management of property by its new owners (i.e. the trustee and beneficiaries); if in ordinary bequeath the deceased gets to adjudicate in the question of who controls the property, the trust allows them also to determine exactly how it will be put to use. Even assuming the (anti)perpetuity rules which are affective in English law, it is far from clear that we can justify this form of control from the grave which Thomas Paine thought of as "the most ridiculous and insolent of all tyrannies."
Arguments against granting a power to the dead hand to dictate the life of the property via posthumous trusts have two aspects.
From the heirs/beneficiaries’ perspective, the argument is that each generation of owners should enjoy equal ownership rights. This egalitarian line of reasoning, we will see, applies both on an individual and a political level.
From the testator/settlor’s perspective, the motivation for wanting such power comes across as an attempt to evade the clear consequences of death, namely, that one’s agency to act in the world comes to an end.
Posthumous trusts can thus be seen as an exercise in pathological domineering or an expression of a delirious refusal to face the fact of one’s mortality. As such, it is hard to see how this form of private control over property can be legitimised on the standard justifications for ownership. Moreover, since this particular power is constituted by the trustee’s duty of conscience to abide by the terms of a trust, the justificatory burden it must lift is even heavier than in other instances of private power over property.
There are two ways to answer these challenges, which delineate the effect that the available answers have on the limits we must set on posthumous trusts: first, it is argued that the wish to settle a posthumous trust can be depicted as expressive of the stake we can legitimately claim to have in what happens in the world after we die (rather than a futile attempt to control a domain we no longer have any interest in). A second justification conceptualises the posthumous trust as a valid response to the consciousness of the inevitability death. What could be seen as a legal instrument that serves some fantasy on immortality, is interpreted instead as means for balancing the terror of death against the need to lead productive and healthy life.
Irit, tell us more about your work and research on trust law and theory of equity.
Historically, the concept of ‘conscience’ has been the prime expression of Equity’s insistence that legal liability should follow moral responsibility, and that some requirements of the rule of law can be relaxed in order to achieve this goal. But in a modern, secular and pluralist society, an appeal to ‘conscience’ may give rise to deep suspicion. As is the case with other ‘words drawn from morals, [such as] malice, intent, and negligence’, it has been suggested that conscience should mean ‘something different in law from what it means in morals’, because of ‘the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way’.[1] If we follow Justice Holmes’ advice, we would interpret ‘conscience’ as a term of art, so that its meaning in law would be different from its meaning in ordinary language. Alternatively, perhaps ‘conscience’ belongs with other ‘word[s] of moral significance [which] could be banished from the law altogether, [so that] other words [are] adopted which should convey legal ideas uncolored by anything outside the law’.[2] An central aim of my work on equity, is to show why we should reject both suggestions. The category of conscience (unless abused), is not a devious mechanism for enforcing the private views of the judge on hapless litigants. It therefore should not be conceived as a threat to the litigants’ right to be judged by objective standards consistently applied. Nor should conscience be treated as a charming linguistic relic that has lost its vitality and connection to modern ways of living.[3]
The concept of conscience is fundamental to Equity since it brilliantly expresses its role as an advocate of ‘accountability correspondence’, namely, the idea that when legal rules impose liability it should ideally correspond to the pattern of moral duty in the circumstances to which the rules apply. The concept of conscience also captures the mode of reasoning which equity employs in order to impel our legal system in the direction of this ideal. Beyond these substantive features, the terminology of conscience also has an important communicative function in that it alerts the law’s addressees to the fact that Equity takes serious consideration of the inter-personal morality aspect of their relationship with other players in the market. References to Equity as a conduit for introducing moral reasoning duty into the law are scattered all over Chancery case-law and scholarship.[4] But such broad brush allusions to the way in which moral reasoning factors into the law of Equity are not very helpful and can actually be harmful, since Equity’s opponents use them as evidence for its rowdy nature. Instead, this chapter presents a philosophical model that ties role of Equity with the legal category of conscience and objective moral values.
Ann, your lecture will 'consider the consequences of encountering references to English law, and English legal history, in American decisions’. Do you think there any similarities and points of departure in relation to English and American law?
English common law is the basis of American law, with the famous departure of the US written Constitution, parts of which are taken directly from decisions of eighteenth century (and earlier) English courts. Both systems develop legal principles through judicial precedents, and so it is common to see discussion of decisions from both countries in each other's courts. Of course, there is quite a bit of newfangled (for the eighteenth century) thinking in the American Constitution as well.
Ann, tell us more about your work and research on taxation law, especially from an international and comparative perspective.
Over the course of my career, I have been interested in the principles of taxation law within the United Kingdom, especially to the extent that they advance equality. Internationally and comparatively, there is a lot to consider, given that ideas from, say, Adam Smith may be found in the written constitutions of several countries around the world (if not the US). Discussions about taxation law in the United Kingdom have been pretty influential. Perhaps the most meaningful (to me) aspect of my research has engaged feminist perspectives on taxation law. I have learned so much from scholars around the world about implicit bias, the significance of how terms are defined, the value of considering equality at the point of designing a tax system (and not simply viewing the abolition of explicit bias in legislation as the end of the project), and more.
Both of you touch upon trust law for the lecture. Do you think trusts are similar in both American and English contexts?
Trusts in the United Kingdom and in America have principles in common, but they have developed differently. In the US, states adopt their own laws on trusts, with some restrictions. So, this can be a complicated question. There are also quite marked differences in terms of outlook, as in England the trust is viewed as a proprietary tool for benefitting the beneficiaries, whereas in the US in it conceptualised as an extension of the owner’s power, and it is the settlor’s wishes for the property that take centre stage. This has some practical ramifications (e.g. the rejection of the Saunders Vautier rights of the beneficiaries to come together to collapse the trust), and it effects the way the trust is studied in law schools.
What have been some of your key career highlights?
Ann: I have enjoyed travelling and discussing UK taxation law with scholars from around the world, which has been an enormous privilege. Recently,it seems that a generation of persons working in Tax Legal London has become discernible, who studied taxation with me at some point or another, which is wonderful. A few years ago now, I co-founded the undergraduate course in US Constitutional Law, with the brilliant Alex Tuerk, which was intellectually rewarding and, thanks to Alex’s insights and path-breaking work on comparative American / European perspectives, an open door for me to consider the global resonance of that old eighteenth century document, it has been wonderful to work on that project with the enormously impressive scholar Rumen Cholakov.
Last year, Prof Julian Ghosh, KC, an erudite and masterful scholar, helped to transform our undergraduate course, and also invited our students to a celebration of his book, which involved a number of members of the UK Supreme Court. That was unforgettable!
Finally, reading the Hutchinson decision, after years of searching and grappling with palaeography and (in the end not needed – it was in Law French!) Latin courses, was pretty exciting. That my work with Hutchinson was profiled in the National Law Review, which itself was mentioned both in an address by the Hon. John G. Browning, and recently a decision by Judge Carlton W. Reeves of the US District Court for the Southern District of Mississippi, was so gratifying. Being name checked on the podcast Strict Scrutiny was also the best career moment ever! I shall discuss Hutchinson during the inaugural lecture.
Irit: I have had the huge privilege to write my DPhil under the supervision of the late Jospeh Raz. Being part of the community of analytical private law jurisprudence is a life long benefit and pleasure, as we keep on working together, and helping the generation to thrive. The international network of equity theory scholars, which I helped to nurture via the annual equity conference and other initiative is a source of great pride, as the work we are producing is reshaping the academic landscape in this area of law. The sabbatical periods I spent at fantastic universities in Sydney, Brisbane, Florence and Montreal were no doubt the highlights of my career.
[1] O.W. Holmes, The Path of the Law and The Common Law (Kaplan Publishing 2009), p.8
[2] Ibid, p.11.
[3] E.g. Lionel Smith, 'Fusion and tradition' in Simone Degeling and James Edelman (eds), Equity in commercial law (Lawbook Co. 2005), circa FN 33.
[4] Dudley v. Dudley [1705] EngR 25 (CC), Per Lord Cowper; I. C. F. Spry, The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages (7th edn, Lawbook Co. 2007) p 6.; E. W. Thomas, The judicial process : realism, pragmatism, practical reasoning and principles (Cambridge University Press 2005), p.375; Ralph A. Newman, 'An Analysis of the Moral Content of the Principles of Equity' (1967) 19 Hastings LJ 147, p.149; Gary Watt aim’s in his book on Equity is ‘to reassert equity’s power to provide an ethic for imagining better law and better life’ (Gary Watt, Equity stirring : the story of justice beyond law (Hart 2009), p.1)