- Dead hand dilemma,
- Spendthrift trust doctrine,
- Claflin doctrine,
- Restraints on alienation,
- Repugnancy theory
This article discusses a basic paradox at the core of liberal property law. Individual freedom to dispose of consolidated bundles of rights cannot simultaneously be allowed and fully maintained. If the donor of a property interest tries to restrict the donee's freedom to dispose of that interest, the legal system, in deciding whether to enforce or void that restriction, must resolve whose freedom it will protect, that of the donor or that of the donee. Although post-realist American property lawyers acknowledge this conflict, at least nominally, it did not emerge in legal consciousness in so starkly visible a form until the end of the nineteenth century. Several features of antebellum legal thought obscured the problem in the "dead hand" doctrines. Incident to the Classical, or late nineteenth century, effort to recategorize and rationalize private law rules on the basis of "scientific" principles that abandoned the old "feudal" policy supporting property's "technical" elements, these pre-Classical mediating devices began to erode. With the disintegration of the pre-Classical conceptual structure, Classical lawyers explicitly faced the problem of the freedom of disposition principle. Their effort to construct a synthesis that resolved the contradiction on an objective basis and that assimilated equitable with legal doctrine failed toward the end of the nineteenth century.
The demise of the Classical synthesis was signaled by the adoption in most jurisdictions of a pair of new trust law doctrines that reversed established trust rules. The spendthrift trust doctrine permitted trust transferors to tie up a beneficiary's interest by imposing direct restraints on its alienability. The Claflin doctrine soon thereafter immunized private trusts from attempts by beneficiaries to destroy them through premature termination. Far from being reconcilable with the conventional property rules which invalidate most restraints on legal interests, these doctrines placed trust and property, equity and law in fundamental conflict over the problem of freedom of disposition.
This doctrinal development and the changes in legal consciousness that underlay it are central to a historical understanding of the ideology of private property in liberal legal thought. Anglo-American lawyers have long identified the lifting of restraints on alienation as the major defining characteristic of a liberal commercial society as opposed to a feudal one. Along with liberty of contract, free alienation is one of the keystones of the twin policies of promoting individual autonomy and free exchange in competitive markets. Nineteenth century lawyers conflated the distinction between state-imposed restrictions on alienation and privately imposed restraints, treating the policy underlying rules proscribing the latter as continuous with the policy opposed to the old feudal restraints. Their historical vision, which persists today, sees the development of the law of disposition as continuous and directional. Within this vision, modem lawyers have pushed the deviationist trust rules into a corner as aberrational or accommodated them on the basis of instrumentalist accounts of the doctrines as pragmatic responses to existing social "needs."
Against this consensus view, this article relates the doctrinal conflict between property and trust law to the internal contradiction in the liberal legal principle of freedom of disposition. The historical account offered here suggests that within the individualistic regime of consolidated property there is no objective basis for choosing between the autonomy of the donor and that of the donee, the dead hand dilemma; any resolution of that problem is a "naked preference."
Available at: http://works.bepress.com/gregory_alexander/2/