Making Trusts Civilised: The Japanese Trust as 'Legal Transplant'

Abstract

This thesis integrates doctrinal analysis of English and Japanese trusts with the theoretical literature on legal transplants, offering a theoretically informed account of how the trust has been adapted within a civil law environment and how, in the process, it has transformed both itself and the receiving jurisdiction’s legal landscape. It explains how the trust, over the course of its history, has come to occupy an ever-shifting balance between effectuating the settlor’s intentions and recognizing the beneficiary’s interests; and that Japanese trust law, too, reflects a collision between these two conceptions, though it has struck a different equilibrium. Rather than adopting an external or sociological perspective as is common for analysis of Japanese law by foreigners, this thesis works from within the doctrinal structures themselves, showing how conceptual difficulties have arisen on both sides—the common law’s own internal tensions and Japan’s distinct historical and institutional constraints. This transcends the doctrinaire question of whether the common law trust, with its notion of dual ownership, is ‘compatible’ with civil law systems founded on the idea of unitary ownership. It also models an approach to studies of legal transplants which avoids the notion of ‘success’ and explains why this is an uninstructive framework from which to theorise the transmission of law between jurisdictions and legal traditions. The thesis debunks persistent assumptions that the trust is by its nature particularly resistant to transplantation, and more generally corrects comparative laws inherited preoccupation with degrees of ‘fit’ between transplanted law and receiving jurisdictional contexts. It combines these insights with a normative defence of doctrinally inflected comparative law and of doctrinal resistivity to instrumentalist dilution of private law forms such as the trust.