Document Type

Article

Publication Date

Fall 1987

Keywords

Legal categories, Arrangement of law, Trust law, Alienability, C.C. Langdell, George Costigan, The Duke of Norfolk's Case, Pells v. Brown, Pybus v. Smith, Brandon v. Robinson, Saunders v. Vautier, Richards v. Delbridge, Ex parte Pye, Morice v. Bishop of Durham

Disciplines

Estates and Trusts | Legal History

Abstract

Sometimes we are least aware of that which most affects us. So it seems with respect to legal categories. Lawyers do not take legal categories very seriously today. But they should. Legal categories are central to legal reasoning; indeed it is almost impossible to imagine legal reasoning without the use of categories. Categorical thinking affects every area of law. The purpose of this article is to illuminate, through a case-study, the contingent and ideological character of legal categories. It focuses on the development of trusts into and then as a discrete legal category during the period between the beginning of the nineteenth century through the first two decades of the twentieth century. Nineteenth-century treatises and judicial opinions were filled with discussions about categorical distinctions and the arrangement of law. Categorical ordering was especially conspicuous during the period between 1870 and 1920, the era that, following other recent scholarship, I will call ‘Classical’, but it was also important in the early part of the century.

Publication Citation

Published in: Law and History Review, vol. 5, no. 2 (Fall 1987).

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