Abstract

In this lecture Professor Penner examines the structure of trust doctrine to consider the question, “What sort of knowledge and understanding does a trusts lawyer have?”, and proposes that the most telling analogy is with the kind of knowledge and understanding that a practitioner of a ‘special science’ like civil engineering has. A trust is a facilitative device that subjects of the law can use to create structures of beneficial property interests, and the law is shaped around the creative structures that have been found popular, and the problems which can arise from its use. This characterisation makes sense of the way trust doctrine is structure in treatises and textbooks, but also raises demanding questions about the legitimacy of trust law. In particular, it suggests that the authority of the law in this area must draw at the same time upon two sources of authority that Joseph Raz’s theory of authority identifies, the ability to solve co-ordination problems and the authority of the expert, sources of authority which are normally regarded as mutually exclusive.