The Public-Private Nature of Charity Law

Kathryn Chan

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782258490
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho de sucesiones y fideicomisos

Is charity law a 'private law' or a 'public law' subject? This book maps charity law's relationship to the public law-private law divide, arguing that charity law is best understood as a hybrid (public-private) legal tradition that is constantly seeking to maintain an equilibrium between the protection of the autonomy of property-owning individuals to direct and control their wealth, and the furtherance of competing public visions of the good. Of interest to scholars and charity lawyers alike, The Public-Private Nature of Charity Law applies its unique lens both to traditional topics such as the public benefit rule and charity law's rules of standing, and to more contemporary issues such as the co-optation of charitable resources by threatened welfare states and the emergence of social enterprise.
'This book should be read by all who are interested in the respective domains of public and private law. Kathryn Chan brings new light to the divide and reveals the way in which both public and private law inform charity law. The book is subtle, original and rigorous, with an excellent grasp of primary and secondary material.'
- Paul Craig, Professor of English Law at the University of Oxford and a Fellow of St John's College 'An original and thought-provoking book which takes the somewhat unruly law of charities and, with great insight and clarity, helps it to find its place on the legal map.'
- Mary Synge, Associate Professor in Law at the University of Exeter 'Kathryn Chan's impressive monograph breaks new ground in its analytical approach towards charity in the modern world. Her careful study helps us to understand how charitable enterprises partake of the values and concerns of both public and private law, and to evaluate the strength and weaknesses of different approaches to the governance of charitable enterprises.'
- Lionel Smith, Sir William C Macdonald Professor of Law, McGill University

1

The Law of Charities and the Public Law–Private Law Divide

I.Introduction

In my judgment … the world of charity is essentially private.¹
Charitable trusts are public, not private, trusts.²

The law of charities has not traditionally displayed a great deal of concern for how its own subject matter should be analysed or understood. Rooted in the practices of England’s equitable and ecclesiastical courts, and anchored for centuries to the Preamble of an Elizabethan statute, the charity law tradition of the common law world is most commonly described through a narrative, and thus perceived through a lens, which emphasizes these features of its rich history. The historical lens, as any other, has certain optical effects. It accentuates the judicial provenance of much of the law of charities, and the casuistic quality of the decisions establishing which philanthropic impulses the courts will in perpetuity enforce. It highlights the isolated quality of the law of charities and the way in which it seems to perch, an abiding reminder of equity’s historic separateness, somewhere outside the core disciplines of the private law. And it accentuates the extent to which the law of charities is ‘common’ to the common law world.

The historical lens, then, captures much that is true about the law of charities. However, it also has a number of limitations, the gravity of which has increased in recent years. The lens does not fully capture, for example, the extent to which charity law is now rooted in statutory instruments and controlled by statutory regulators, not only in England and Wales, but also in other parts of the common law world. It fails to convey the degree to which charities, and thus the laws pertaining to charities, are enmeshed in debates about the proper scope of the welfare state and the appropriate ambit of human rights instruments. The historical lens understates the degree of variation between the laws governing charities in different common law jurisdictions, and the effect that different institutional settings have had on the core doctrines of the tradition. And it masks a traditional lack of theory about the purpose of charity law, and its place on our legal map.³

The project of this book is to address some of these limitations by bringing another ‘lens’ to bear on the modern law of charities in a number of common law jurisdictions. The chosen lens is that of the public law–private law divide, a central conceptual tool for the organization of legal information. The book examines various aspects of the law of charities in terms of their relationship with the contested categories of ‘public law’ and ‘private law’, doing so in the hope of achieving three related goals. The first of these may, in the tradition of Peter Birks, be identified as the mapping goal: it is to begin exposing where the law of charities ‘sits’ in a doctrinal world that can be viewed as conceptually divided into the public and the private. The second, and related, goal of the book is a comparative mapping goal: it is to identify the similarities and differences between certain laws governing charities in different jurisdictions, in order to illustrate the range of existing charity law ‘maps’ within the common law world, and the corresponding range of views about charities to which those maps give effect. Finally, the book has an evaluative goal, which is to contribute to the creation of a useful normative discourse about the function of charity law in modern society and the merit of specific charity law rules.

In pursuing these goals, the book makes four central claims. The first claim is that the charity law tradition that evolved in the English Chancery courts (the ‘common law charities tradition’) was historically a true ‘hybrid’ of private law and public law, in the sense that it accorded comparable importance to the autonomy interests of benevolent property owners, and to the public interest in properly and effectively administered charity property. The second claim is that the contemporary regimes of charity regulation that have evolved in England and Wales and other common law jurisdictions are also legal hybrids, but in changed and varied senses, which reflect the diverse public interests that have come to bear on the law of charities through the tradition’s interaction with tax law, human rights law and modern government welfare policies. The third claim is that although each of these regimes is unique, it is nonetheless possible to identify a general dichotomy between ‘civil’ and ‘tax-based’ regimes of charity regulation, based on the public interests that each regulator is mandated to protect. My final claim is that the varied public interests exerting influence on the law of charities have combined to make charity law an increasingly public-leaning hybrid, which development is reflected in the contemporary emergence of ‘social enterprise’ vehicles that are both increasingly autonomous in character and subject to lighter-touch regulatory regimes.

The public law–private law lens that is applied throughout this book is substantially doctrinal, in the sense that it relies on ‘language and concepts that are internal rather than external to law’.⁴ Nevertheless, it seeks to expand charity law’s self-understanding in ways that require elaboration.⁵ Therefore, in what follows, this introduction will examine the concept of the public law–private law divide, its relationship to the law of charities, and the particular account of the divide that will be employed for purposes of this work. Finally, the introduction will outline and explain the structure of the remainder of the book.

II.The Public Law–Private Law Divide:
The History of a Concept

The conceptual division of law into public and private, though a relatively recent phenomenon in the common law, has preoccupied jurists since the earliest days of the Western legal tradition. The history of the division has been extensively examined in the literature,⁶ and my aim at this point is to provide only a very brief preliminary summary of that literature. For the Romans, the distinction between public law—that concerning the Roman state—and private law—that concerning the well-being of individuals—stood at the forefront of their system of legal classification,⁷ although little doctrinal energy was spent delimiting the scope of each legal sphere.⁸ With the collapse of the Roman Empire and the ascendancy of feudalism and Germanic law, the distinction lost for a time its practical and intellectual force, medieval society being governed by an assortment of laws deriving from a variety of relationships and sources of authority.⁹ Following the revival of classical Roman legal learning in the twelfth century, however, the public law–private law distinction became foundational to the structure of European law, ultimately underpinning the organization of the continental codes, and the formal separation of civil courts and administrative tribunals in countries such as Germany and France.¹⁰

England and Wales was much slower than the Continent to develop a ‘consciously articulated distinction’ between public law and private law.¹¹ The historical English aversion to the notion of a separate category of public law, traceable back to the twelfth century,¹² was concretized by the Victorian jurist Albert Dicey, who argued in his Introduction to the Law of the Constitution that the ‘universal subjection of all classes to one law administered by the ordinary courts’ was a key element of the rule of law.¹³ Despite the various criticisms to which it was subjected, Dicey’s defence of formal equality before the law and his criticism of the French system of droit administratif is widely credited with having held back the development of a distinct, English public law tradition for almost a century.¹⁴ Dicey’s work was also ‘remarkably influential’ in various of the colonies to which England’s common law tradition had spread.¹⁵

It was during the course of the twentieth century that unique ‘public law’ and ‘private law’ traditions developed within the common law world. The rise of a self-conscious ‘public law’ came first, emerging as a response to the rapid expansion of the welfare state, and concomitant concerns about the dangers of untrammelled bureaucratic power. Within the course of five or six decades, administrative law had gone from ‘supposed nonexistence to professional acceptance and respectability’ in the United Kingdom, and was developing quickly in other common law jurisdictions.¹⁶ Together with constitutional law, administrative law was soon understood as one of two central pillars of a broader public law tradition. The self-conscious identification of a distinctive private law tradition followed (and likely followed from) these public law developments.¹⁷ As public law became more dominant, a growing group of private law jurists began to argue that ‘property, tort, contract, restitution (and perhaps also trusts) … constituted a conceptually distinct part of the law’.¹⁸

The development of distinctive ‘public law’ and ‘private law’ traditions in the Anglo-Commonwealth world has been paralleled by the development of a sizeable Anglo-Commonwealth literature debating the validity and the function of the public law–private law divide. This literature provides the starting point for this work’s analysis of the law of charities, and we will have occasion to examine it more fully in what follows. By way of context, however, it is important to note that the body of literature upon which this book relies has been driven to a large extent by major statutory developments in the UK, which have had the effect of making the distinction between public law and private law an issue of dispositive concern. Principal among these developments has been the introduction, now 30 years past, of a separate procedure for judicial review matters in the UK, built around the concept of a ‘public law claim’.¹⁹ The enactment of the UK Human Rights Act 1998, which imposes liability for human rights infractions on a range of ‘public authorities’, has been equally influential.²⁰

This historical context has significantly influenced the shape of recent Anglo-Commonwealth debates over the public law–private law divide. Two characteristics of these debates are particularly worthy of consideration. First, a significant proportion of the early academic commentary on the distinction between public law and private law was written from a ‘public law’ perspective, and focused either on the appropriateness of having a separate ...