The law of trusts has spent the last twenty years rapidly shedding many traditional requirements, forms, and restrictions which imposed liability on negligent trustees, protected vulnerable beneficiaries, and prevented the use of trusts to avoid the claims of settlors’ and beneficiaries’ creditors, including their spouses, their children, and their governments. This article studies seven aspects of this ‘stripping of the trust,’ examines its consequences from both a distributive justice and a corrective justice point of view, and inquires whether the resulting stripped-down model coheres with the traditional functionality of donative private trusts. I found that most of the current reforms have welfare-reducing distributive consequences, in some cases inflicting externalities on all except the parties to a given trust, in others transferring value from settlors and beneficiaries to the trust service providers serving them. Most of the reforms discussed also create potential for infringements of corrective justice which either did not exist, or was less significant, pre-reform. I conclude that all but one of the seven reforms I examine should be reversed.
The basic colonial encounter involved a colonizing power and colonized locals. Some colonial situations were more complex, involving a third element: settlers of nonlocal stock originating in an ethnos, or nation, different than that with which the colonizer was identified. Two prominent examples from the annals of the British Empire are the French inhabitants of Nouvelle France after France ceded it to the British in 1763, and the Dutch inhabitants of the Cape Colony after the British conquest of 1806. The British typically permitted such settler populations to retain at least parts of the laws to which they were accustomed, which laws were often based on the laws of the settlers' jurisdiction of origin. As regards settler use of English law, the English sometimes provided for the application of parts of it to non-British settlers, while blocking such settlers' attempts to use other parts. The part of English law most commonly applied to non-British colonial subjects, both settlers and natives, was commercial law, in order to facilitate commerce between different parts of the Empire. The parts least commonly applied to such inhabitants were family law, land law, and the law of inheritance.
The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with ajustandstablelegal order by referring them to norms associated with their several religions and enforced by state courts?
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