This symposium will revisit themes and theoretical perspectives in Roger Cotterrell’s now canonical work in the field of trusts law, 30 years after the publication of this ground-breaking article.
In his 1987 article, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship’, published in Journal of Law and Society, Roger Cotterrell outlined for the first time a critical, socio-legal approach to the law of trusts. For Cotterrell law is both instrumental and ideological. As such, critical analysis aims at the demystification of law: how does law structure and guarantee, on the one hand, yet legitimate and hide, on the other, the exercise of power? In particular, Cotterrell argues that trusts extend and intensify the ideological function of property, which hides or silences inequalities through a methodological separation of persons and things. Trusts further separate persons and things through the notion of the fund and the figures of trustee and beneficiary.
Consequently, the trust both concentrates property-power (through the formation of large funds) and hides property-power (through the splitting of visible legal and invisible beneficial ownership). This critical framework explains the ideological significance of the beneficiary principle and the rule against non-charitable purpose trusts; fiduciary obligations; and charitable trusts. Thirty years later, Cotterrell’s work continues to pose questions of power, property, ideology and inequality, opening new perspectives on the broader societal significance of the effects of trust law.