The Fiduciary Constitution of Human Rights

Abstract

The authors argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or state-like actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

Keywords: human rights, sovereignty, Kant, fiduciary