TY - JOUR

T1 - Concealing the Past?: Questioning Textbook Interpretations of the History of Equity and Trusts.

AU - Doupe, Michael

AU - Salter, Michael

PY - 2000/5

Y1 - 2000/5

N2 - 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.

AB - 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.

KW - history of equity and trusts - strict settlements - the ideological nature of the textbook tradition

U2 - 10.1023/A:1010612807266

DO - 10.1023/A:1010612807266

M3 - Journal article

VL - 22

SP - 253

EP - 285

JO - Liverpool Law Review

JF - Liverpool Law Review

SN - 1572-8625

IS - 2-3

ER -