Trust and Fiduciary Law
University of Melbourne - Law School
June 17, 2014
Oxford Journal of Legal Studies, Vol 33. No. 1, 2013
U of Melbourne Legal Studies Research Paper No. 686
How can it be that the fiduciary relationship has trust at its core if trust is neither a necessary nor a sufficient condition for the existence of such a relationship? My aim in this article is to make some arguments that I think might assist in solving that puzzle. First, I argue that fiduciary relationships are likely to be characterized by relatively ‘thick’ interpersonal trust. Secondly, I argue that moral duties referring to trust play a role in the justification of fiduciary duties, but that the role of trust in the underlying moral duties is contingent, yielding only a contingent connection between trust and fiduciary duties. Finally, I argue that a goal of fiduciary law should be enabling and supporting trusting relationships, but that this goal should be viewed within a broader liberal outlook according to which fiduciary law also enables and supports relationships on terms of detachment.
Number of Pages in PDF File: 23
Keywords: equity, morality, normativity, discretion, private law, duty
JEL Classification: K00, K39
Date posted: June 17, 2014
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