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Concealing the Past?: Questioning Textbook Interpretations of the History of Equity and Trusts.

Research output: Contribution to journalJournal article

Published

Journal publication date05/2000
JournalLiverpool Law Review
Journal number2-3
Volume22
Number of pages33
Pages253-285
Original languageEnglish

Abstract

This article argues that legal academics and their students should be encouraged to question the unacknowledged ideological assumptions and overall interpretative orientations upon which the “history” of the legal doctrine of equity and trusts is presented by standard law textbooks. Once these assumptions are questioned, it is possible to identify a series of difficulties and contradictions stemming from the failure of these standard “monumental” textbook accounts to transcend a series of unacknowledged presuppositions, including a commitment to an internal, linear model of historical development. Applying this underlying model generates an ideologically affirmative and one-sided account of not only the evolution of equity but also the present operation of this area of law. There is, therefore, a pressing need to uncover and challenge the basis upon which the selective constitution and presentation to students of such “history” takes place, particularly the deception involved in passing off a selective interpretation as if it represented a disinterested, politically neutral and value-free description of self-evident “facts” about the evolution of property law. This overall argument regarding the ideological nature of such historical narratives is illustrated with reference to the textbook analysis of both strict settlements, and in terms of its provision of a resource for attacking recent judicial innovations.