Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship

Much uncertainty still surrounds the enterprise of critical legal studies. What does it mean to undertake 'critical' study of any particular area of legal doctrine or institutions? This paper will sketch out elements of a conception of critical legal scholarship as an enterprise and then apply some of its methods and precepts to a preliminary and tentative 'critical' exploration of the legal conception of the trust in English law. My aim is to suggest parts of an appropriate agenda for critical study of English property law and, within it, especially trust law. It should be said immediately that the conception of critical legal scholarship adhered to in this paper is substantially different from and in many respects opposed to that which has been developed in the important recent American Critical Legal Studies Movement.' The view taken in this paper is that critical legal scholarship in the U.S.A. has crucial inadequacies which make it an inappropriate model for a form of legal scholarship now widely sought; one with the intellectual strength to endure and build progressively a more adequate understanding of law while, at the same time, radically challenging existing forms of legal study. There are three major reasons for this. First, critical legal scholarship in the U.S.A. is too narrow in its vision of appropriate scholarship in the field of law. It puts great emphasis on the need for radical analysis of legal doctrine and of the processes of its professional interpretation. But in general it does not give enough serious attention to the equal need for systematic analysis of the social, economic and political context within which legal doctrine is developed, interpreted, invoked and applied. It ignores or dismisses the claim that legal doctrine receives its practical meaning and significance only from that wider context and that, therefore, it is self-defeating to engage in critical study of doctrine without seeing this doctrine (and the use made of it) as an integral element in a larger social, political and economic environment which itself requires systematic empirical and theoretical analysis. Secondly, critical legal scholarship in the U.S.A. is theoretically inadequate because of its failure to