Abstract This article argues that modern trust law has undergone a radical global transformation while remaining largely absent from democratic debate, a condition the article terms trust law’s ‘permissive invisibility’. The article traces how trust law’s origins in equity entrenched a judge-centric, normatively charged but socially insulated doctrinal culture, which proved increasingly permissive as trusts were repurposed for regulatory arbitrage in an era of transnational financial capitalism. The article then shows how legislative reform was critically enabled by trust law’s particularly low public salience but inverted, high salience among the owners and operators of concentrated capital. The recursive force of this judicial and legislative permissiveness has now normalised antisocial innovations such as perpetual and massively discretionary trusts. The article concludes by calling for empirically grounded, critical socio-legal study in the tradition articulated by Roger Cotterrell as a necessary precondition for any democratically credible trust law reform agenda.
Jedidiah Kroncke (Wed,) studied this question.