Sovereignty's Promise -- 'Introduction: The State as Fiduciary and the Rule of Law'
Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011).
29 Pages Posted: 10 Feb 2016
Date Written: December 11, 2011
This is Chapter 1 of Sovereignty's Promise, titled "Introduction: The State as Fiduciary and the Rule of Law."
In this book, 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.
Chapter 1 suggests that common law constitutionalists lack a convincing reply to those who claim that there are no legal duties in public law save those which can be anchored in statute. If the state is a fiduciary of its people, however, a forceful reply awaits: because the state is a fiduciary of its people, it stands in a legal relationship to them from which rights and duties of public law may be inferred, wholly independent of statute. This chapter fleshes out this idea, and the idea of a legal, relational, and Kantian conception of the rule of law that challenges libertarianism.
Keywords: rule of law, fiduciary, parent, child, Kant, libertarianism, common law constitutionalism
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