Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011).
40 Pages Posted: 10 Feb 2016 Last revised: 12 Feb 2016
Date Written: December 14, 2011
This is the front matter and Prologue of the monograph "Sovereignty's Promise: The State as Fiduciary."
I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
The Prologue looks to Thomas Hobbes as an historical exemplar of the idea that legal order has a fiduciary constitution structured by legal principles.
Keywords: fiduciary, Hobbes, rule of law, administrative law, legal order
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