Sovereignty's Promise -- 'Fiduciary Relationships and the Presumption of Trust'

Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011).

24 Pages Posted: 10 Feb 2016

See all articles by Evan Fox-Decent

Evan Fox-Decent

McGill University - Faculty of Law

Date Written: December 11, 2011

Abstract

This is Chapter 4 of Sovereignty's Promise, titled "Fiduciary Relationships and the Presumption of Trust".

In the 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.

In this chapter, I discuss the nature of sovereignty and develop a theory of fiduciary relations. I argue that the relationship between state and legal subject exhibits the features of fiduciary relations, and therefore is itself a particular form of fiduciary relationship. I also argue that, roughly speaking, trust is to fiduciary relations what consent is to contractual relations: like consent in contract, trust explains the presence and nature of various duties of fiduciary law.

Keywords: fiduciary, trust, consent, Kant, Baier, vulnerability, incapacity

Suggested Citation

Fox-Decent, Evan, Sovereignty's Promise -- 'Fiduciary Relationships and the Presumption of Trust' (December 11, 2011). Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011).. Available at SSRN: https://ssrn.com/abstract=2729419

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://www.mcgill.ca/law/about/profs/fox-decent-evan

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