New Frontiers of Public Fiduciary Law

Abstract

In recent years, scholars have deployed fiduciary concepts to explain or illuminate a dizzying array of public law regimes and institutions. To name but a few, this array includes constitutional law, administrative law, common law constitutionalism, international law, international human rights law, the law of judging, the law governing legislators, the law governing indigenous peoples, the law of armed conflict, national security and emergencies law, and international refugee law. The sheer range of topics treated may give the impression that there are few, if any, new frontiers in public fiduciary law. I argue that quite the opposite is true: the frontiers of public fiduciary law are vast and open. They are so because public fiduciary theory, within its domain (the domain of public law), is an interpretive theory of everything. I suggest that the theory underlying public fiduciary law is a theory of everything with respect to public law because the theory illuminates the salient features of the representative structure of public fiduciary relations. The most general normative implication of this representative conceptual structure is that office holders are under an obligation to exercise their power in a manner that can be understood as in the name of or on behalf of the persons subject to it. With this theory in place, we can explain why the frontiers are wide open in every sphere of public law—national, international, cosmopolitan, and transnational—and why they are just as expansive with respect to public fiduciary law and its relation to democracy, future generations, alternative theoretical frameworks, and jurisprudential inquiry. Indeed, the new frontiers of public fiduciary law are not simply open and expansive. They are also inviting.

Keywords: fiduciary law, public law, administrative law, constitutional law, rule of law, representation