The very institution of the trust being a creature of judicial precedent, not statute, Melville’s caricature in Moby-Dick of precedent would seem as superficial as it is lyrical

In Moby-Dick, Melville, one suspects, is letting us know what he really thinks about judicial precedent: “Nor is this the end. Desecrated as the [whale’s] body is, a vengeful ghost survives and hovers over it to scare. Espied by some timid man-of-war or blundering discovery-vessel from afar, when the distance obscuring the swarming fowls, nevertheless still shows the white mass floating in the sun, and the white spray heaving high against it; straightway the whale's unharming corpse, with trembling fingers is set down in the log—shoals, rocks, and breakers hereabouts: beware! And for years afterwards, perhaps, ships shun the place; leaping over it as silly sheep leap over a vacuum, because their leader originally leaped when a stick was held. There's your law of precedents; there's your utility of traditions; there's the story of your obstinate survival of old beliefs never bottomed on the earth, and now even hovering in the air! There's orthodoxy!”

Such sentiments echo throughout Dickens’ Bleak House: “On such an afternoon, some score of members of the High Court of Chancery bar ought to be—as here they are—mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horsehair warded heads against walls of words and making a pretence of equity with serious faces, as players might.”

And then there is Prof. Leach: “Since 1787 these Fertile Octogenarian cases have bedeviled estate planners and destroyed perfectly sensible wills and trusts with the remorselessness of a guillotine. The acme of silliness was achieved when an English court ruled that it was conclusively presumed that a widow of 67 could have a child and that the child could in turn have a child before the age of five!…” Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent, 48 A.B.A. J. 942 (1962).

I do not share this intensity of impatience with traditions and doctrines of earlier times and other eras. The fertile-octogenarian doctrine, “law French” and other such curiosities remind us that the law of trusts has been a work-in-progress for centuries. If nothing else, they provide valuable clues as to the course of its evolution to date. In the trust context particularly there is nothing “efficient” or “reforming” about fossilizing viable equity doctrine or repeating some failed legislative experiment of long ago. In 2008, Justice J.D. Heydon (Australia) weighed in: “A system of judge-made law resting on principles of stare decisis has a degree of stability; but it teems with life, and is inherently capable of change in the light of experience.” The law of trusts particularly is best fine-tuned judicially through application of general principles to doubtful problems. “The process revivifies the general principles: it enables them to be explored, understood afresh when looked at from the new angle, modified in the light of the new problem so that the general principles in turn can have slightly different applications in future.” Codification tends to “deaden and stultify” that process.

Daniel Hannan’s perspective encompasses the full spectrum of the common law, presumably as it has come to be enhanced by equity: “Common law is an anomaly, a beautiful, miraculous anomaly. In the rest of the world, laws are written down from first principles and then applied to specific disputes, but the common law grows like a coral, case by case, each judgment serving as the starting point for the next dispute.” Magna Carta: Eight Centuries of Liberty, Wall St. J. (May 29, 2015), at C2.

We consider in Chap. 1 of Loring and Rounds: A Trustee’s Handbook (2022) why the plethora of partial codifications of equity doctrine in the trust space is not particularly helpful as a practical matter (more complexity, less uniformity), the relevant portion of which chapter is set forth in the appendix below. The Handbook is available for purchase at: https://law-store.wolterskluwer.com/s/product/loring-rounds-a-trustees-handbook-2022e-misb/01t4R00000OVWE4QAP.