The Transformation of Trusts as a Legal Category, 1800-1914

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