The Castrated Trustee: Jouissance and Breach of Trust

As a highly prolific legal mechanism that both predated and subsequently found form amid the development of Anglo-American capitalist societies, the modern-day trust operates across manifold private, commercial, domestic and international spheres. As a consequence of their complex legal, economic and political significance that informs, for example, the worlds of global corporate finance as well as public pensions, trusts play a remarkably important role in helping shape the wider socio-cultural domain of Anglo-American jurisdictions and beyond. Yet trusts remain under- or ill-considered juridical sites in terms of continuing critical-legal dialogues, and especially the dialogue between equity and psychoanalysis. This article will explore how the trust mirrors or recreates in an external juridical form the internal regulation of desire and enjoyment that occurs within the psychic space of the subject-as-trustee. In particular, via duties and obligations a trustee holds on behalf of the subject-as-beneficiary, and the resultant breach that is said to occur when such duties and obligations are not met. Using two key formulations this article will aim to assess the trustee as castrated by means of a (re)interpretation and (re)imagination of some fundamental and formal aspects of breach of trust from the perspective of psychoanalysis. The first formulation relates to the continuous force of unconscious desire (the death drive) that pushes the subject-as-trustee ever onwards towards the thing (das Ding) and surplus enjoyment (jouissance), thus producing an (inevitable) affective paradox or trap in which the trustee finds themselves caught. The second, albeit intimately connected with the first, relates to the internal regulatory or prohibitive psychical mechanisms that prevent or seek to prevent the subject-as-trustee from pushing past the limit on enjoyment imposed by the pleasure principle. To be exact, a limit that has been consciously and deliberately recreated in the trust mechanism, and by extension the so-called “onerous” duties of the subject-as-trustee, as a means of preventing a breach of trust