Why I research in the way I do.

I research in the only way that makes sense to me. I have identified the areas of human existence which interest me most - principally what it means to be human and how the law (especially equity) inter-acts with that; how the law deals with rights to property (especially the home); and how the law inter-acts with financial markets. Each of these areas of law and of social theory is incredibly complex. Therefore, my methodology has been primarily to take fifteen years to come to know all of these areas of law and of life-practice well (equity, trusts, property, derivatives, securities markets, legal aid, access to justice, homelessness, the home, financial investment, social investment theory, and financial regulation) and to write comprehensive books on each of these areas. It seemed to me that to seek to write short articles on each of these areas would have been facile until I understood the whole of the area.

My aim, as I am soon to turn 40, is to spend the next decade writing journal articles on a number of the issues which have seemed interesting to me from the research I have done so far. It was important for me to come to know the "entire field" before commenting on narrower areas, and significantly to hone my own ideology (both political and philosophical-theoretical) before worrying at detailed problems.

As anyone who has read my books properly will know, I do deal with detailed questions in my books - but then once i have identified my "big picture" opinion - see, for example, the detailed notion of equity which tops and tails Equity & Trusts moving from a notion of equity found in Aristotle through to social theoretical problems identified with Bauman and Giddens in the final chapter which considers the theoretical nature of a "conscience" - I consider the more detailed issues in the light of that over-arching ideology of how the entire field should be understood. Of course, I have written a large number of essays in the meantime already, as is evident from my curriculum vitae (click here).

Among the future articles and essays I intend to work on in the next few years (and on which I have already begun work) are the following:-

• Dishonest assistance - a hermeneutics of objectivity in private law
• Shortcomings in the theory of unjust enrichment (being the England's Dreaming lecture, click here)
• The legal conscience - the roots of equity in a privately-situated but objectively-constituted conscience
• The way in which financial regulation and private law inter-act
• The techniques of collateralisation in complex financial transactions
• Miller's model of social justice a means of understanding the law on trusts of homes

Theoretical

I have written a large amount of theoretical work over the last fifteen years, some of it a little lost perhaps among the large books I have written in that time. For example, my essay "The Unbearable Lightness of Being" (in New Perspectives on Property Law, Obligations and Restitution) took an idea from Bauman and Sennett about a shift in how modern uber-capitalists like Bill Gates feel no weight from their property (because it is light and soft (like Microsoft's software) and so imposes few burdens of maintenance and no ties to geographical place), and I applied that idea to changes in the way in which property law has begun to think of property itself in different ways - for example permitting trusts to be imposed over non-transferable contracts (or, more precisely over the cash flows which were expected to flow from those contracts). In "Equity, social justice and individualisation", I considered the ideas of Beck and Beck-Gernsheim in detail and the ideas of David Miller relating to a model of social justice in detail, to consider how we might think about the law on trusts of homes differently in the future: that is, by understanding how different approaches taken by different courts (in England and overseas) have different effects when measured against those models of social justice. Versions of these essays appear on the "equity" section of this site: click here.

My book The Law on Investment Entities (2000, click here) was an attempt to marry concepts of "speculative investment" with concepts of "social investment" so as to consider how the law of finance considers these areas differently. In particular, the analysis of PFI contracts illustrated how commercial investment and public sector infrastructure investment were uneasily combined. The analysis of co-operative structures demonstrated how social investment uses very different legal models from ordinary private law: these models are the lost forms of property-without-ownership in England and Wales. Of particular interest in this book was the multi-faceted idea of risk in the social science generally, in law and in finance. The other key theme was the basis of all investment structures ultimately on ideas of contract and of property, but used differently in different contexts to achieve different results.

My book Towards a Just Society (1999, click here) analysed the history of the debates about the reform of the English legal system in the run-up to the 1997 General Election, together with analyses of various theoretical topics (ranging from Foucault's concept of power, through New Labour's abandonment of equality of opportunity) which I suggest should be used to inform the reform of the legal system in the future. This book is also a primary source of information about the development of Labour Party policy relating to the legal system for which I was responsible. My article for the political theory journal Renewal summarised a large part of those arguments: for the text of that article, click here.

My book Equity & Trusts is in fact a 1,200 page work of theory, albeit containing a large amount of detailed equity and trusts law. The thesis which spans the book is that equity is based on ideas found in Aristotle at root, but that those ideas were adapted by the notion of "conscience" which was particularly strong in the 17th century (at the time of the English Civil War). The idea of conscience has been lost slightly since the Earl of Oxford's Case in 1615 (when it was established as the underpinning of English equity). However, it is suggested that it is only possible to understand the vast sweep of trusts law and of equity since then if one (a) thinks about the legal conscience as a privately-situated but objectively-constituted phenomenon permitting private law to use objective tests, and (b) understands doctrines such as constructive trust and most express trusts as being based on the defendant's conscience. The book ends in Chapter 32 with a discussion of this conscience (in section 32.2) and with an outline for the future of equity (some of which I rehearse in England's dreaming, elsewhere in this site.)

My theoretical goal is to marry theory with technical legal rules. The bones of my theoretical work appear in the "system" area of this web-site. To browse those items of work-in-progress, please click here.

Technical

Clearly I am also heavily involved in writing technical legal materials as well as theoretical materials. I do see one as informing the other, although it is common among academics to see each other as either being theorists or as being "black letter" lawyers. Of course, detailed law gives rise to fascinating theoretical questions all of the time - the beauty of law as a social science is that it contains case studies and statements by its actors (judges and lawyers) as to their reasons for their decisions and actions in the law reports, and in regulation and in statute. Thus, theoretical models are always needed to understand all of that law. Of course all law is a model (or rather a number of different models) used to decide when binding agreements have been created (in the form of contracts) or when one person is required to hold property to another person's account (such as trusts): all of these ideas are models. So lawyers are always dealing with different types of theory all the time, whether applied theory, abstract theory, or technical theory. For example, Chapter 20 in my Equity & Trusts contains a mixture of all three types: the abstract theory of Levinas and Elias discussing objective dishonesty, the technical question of being personally liable to account to a beneficiary for failing to be honest in the way one would expect of an honest person, and the applied theoretical question as to how that model of liability relates to turning a blind eye to the source of investment funds or the transmission of loan moneys to a principal in breach of contract.

At present I am writing a new textbook for Sweet & Maxwell (publication in 2009) called The Law of Finance. The aim is to write the first comprehensive textbook on the law of finance as a whole - that is, incorporating a comprehensive description of the private law dealing with finance, incorporating a description of FSA regulation of the financial markets, presenting an analysis of how the sources of law inter-act so as to take legal concepts and marry them with finance law statute so as to generate the new legal context of a law of finance.

A new edition of The Law of Trusts, with Geraint Thomas, will be published in 2009 by Oxford University Press. There have been a number of significant developments in the law of trusts since the first edition of this book in 2004. The book has been extremely well-received and very well reviewed, as set out in the discussion of my publications. A new edition of Equity & Trusts will also follow soon.

The following podcasts discuss my current research activities:

[material to follow]

The general index for my podcasts can be found here.