Fiduciary Law's Lessons for Deliberative Democracy

Abstract

Deliberative democrats have expended most of their efforts mapping what deliberation should look like at two different levels of decision-making: the deliberation among citizens themselves in exercises of direct and participatory democracy – and the deliberation among legislators or other official actors within the organs of state government. Although it is likely the case that most deliberative democrats would see an important role for deliberation as between legislator and citizen, this deliberative space is underexplored. It is easy to understand why this would be so: deliberative democrats usually require that deliberation take place among free and equals, and there is a very real sense in which legislators who deliberate with their constituents do so from a position of political superiority and expertise. In the Essay that follows, we suggest that features of fiduciary law usefully model how deliberation can be understood between political unequals, in particular when the individual with more political power is supposed to be holding the interests of the individual with less power in trust. If our elected political leaders are, after all, our public fiduciaries, they may be bound by fiduciary duties that underwrite a dialogic imperative with their constituents. Yet, most essentially, fiduciary law’s lesson for deliberative democracy is that a specialized kind of deliberation is possible and desirable between unequals, between fiduciary and beneficiary.

Keywords: Deliberative Democracy, fiduciary law, political representation, civil society, Habermas, Ackerman