Fiduciary Representation and Deliberative Engagement with Children
24 Pages Posted: 23 Mar 2012
Date Written: March 24, 2011
Recent work on “fiduciary representation” has opened up a useful avenue for understanding how state leaders should navigate their representative roles in democratic political systems and for specifying the ethical duties that come with political office. Political theorists throughout the ages have generally thought of the democratic representative as either a “delegate” of the constituent-principal on the one hand, or as a “trustee” for the constituent on the other. Simply put (and put in an overly simplistic dichotomy), the “delegate” works under very strict control with instructions from constituents that need to be executed; the “trustee” has a wide berth of discretion to act within her authority to decide political matters on behalf of her constituents. Yet, as we will show, both idealized forms of democratic representation are subspecies of the fiduciary form. Although some political theorists have noticed the fiduciary status of rulers in democracies (and especially so when trying to make sense of how to represent children in democracies), few have the legal training to elaborate and specify what might be entailed as a consequence of a political representative’s fiduciary status. Fiduciary law provides some hints about how representatives should perform their role responsibilities and understand their relationships with those they govern.
Section I introduces and refines the concept of fiduciary representation. Section II explores what we call a fiduciary requirement of “deliberative engagement.” Although the standard fiduciary duties in the private law arena do not obviously impose this dialogic imperative, we show its latency in fiduciary law — and why it is essential as a principle of democratic political morality in relationships of political representation. Section III then applies the lessons of fiduciary representation to the domain of the political representation of children.
Keywords: fiduciary law, politics, representation, children's rights, fiduciary foundations of public authority
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