文章基本信息

标题：THE TRUST IN COMMON LAW SYSTEMS: FUNCTIONS AND PHILOSOPHICAL CORRESPONDENCES
本地全文：下载
作者：John Glover
期刊名称：Facta Universitatis. Series Philosophy, Sociology, Psychology and History
印刷版ISSN：0354-4648
出版年度：2013
卷号：12
期号：2
页码：145-159
出版社：University of Niš, Serbia and Montenegro ; CEEOL
摘要：Locating the origins of the thought on equity in European Antiquity (Aristotle) and pursuing its development from the 17th century to the present in countries with Anglo-Saxon civil law, the author offers a contemporary post-structural context to the application of the legal instrument of the trust, which has no equivalent in any other legal system. Already Aristotle recognized the potential of equity to act as a corrective of the general law. The trust is the applied form of equity in Anglos-Saxon Common Law systems. As doctrine, the trust eliminates the gap between property law and obligation which exists in Civil Law and thus propels itself into the domain of ethics. Functionally, the trust serves many diverse purposes, which extend from the care for the disabled, corporate finance, charitable giving and tax avoidance. In this article, anti-formalism and Pragmatism frame the theoretical basis of the legal instrument of the trust. The trust behaves similarly to the process of meaning in the Pragmatist philosophy of Charles Sanders Peirce and is focused on the "outcomes" of actions. That is why the author offers the coinage "value-in-action" as a theoretical explanation of the trust. "Trusting" emerges as a vital component of modern trade which again suggests an ethical orientation of the trust. The author advances speculatively that the ethics of modern capitalism, which is invisible ("reclusive"), surfaces implicitly in the law of equity, whose instrument is the trust.
关键词：trust; beneficiary; common law; Pragmatism; C S Peirce; anti-formalism; value-in-action; ethics; deconstruction; genealogical method; property rights.