1.5 The Common Law and the Codification of the Law of Trusts

At present, the law of trusts in Maryland is largely a creature of the common law. Conceptually, rules regulating complex human relationships, like the fiduciary duties owed by a trustee to a trust beneficiary, may be more perfectly developed by the evolutionary process of the common law as opposed to the attempting to codify such rules: “What has been said [about the development of judge-made law] will explain the failure of all theories which consider the law only from its formal side; whether they attempt to deduce a corpus from a priori postulates, or fall into the humbler error of supposing the science of the law to reside in the elegantia juris, or logical cohesion of part with part.   The truth is that the law is always approaching, and never reaching, consistency.   It is forever adapting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off.   It will become entirely consistent only when it ceases to grow.”[1]   The Common Law of Maryland, and of most states, has a dearth of cases offering guidance.     In the 2011 General Assembly, the Maryland State Bar Association proffered a codification of the law of trusts modeled after the Uniform Trust Code.[2]   This proposed codification (the “Maryland Trust Act”), as well as the Uniform Trust Code itself, does not purport to sweep away the common law but to augment it.[3]   Although not yet governing the law of Maryland, this Paper will also address the treatment of trust enforcement under the Uniform Trust Act and the Maryland Trust Act.