The Core of Fiduciary Political Theory
Research Handbook of Fiduciary Law (D. Gordon Smith & Andrew Gold eds., 2018)
17 Pages Posted: 13 Jun 2018
Date Written: May 28, 2018
“Fiduciary political theory” applies norms developed within fiduciary law to public officials and political institutions. Fiduciary political theorists contend that these fiduciary norms describe or, at least, offer insights into the political authority of states and other major questions of political morality. However, many fiduciary political theorists disagree about methodology—specifically, how directly to apply fiduciary norms to the realm of politics.
This chapter has two goals. The first goal is to describe the core of fiduciary political theory by identifying features of fiduciary norms (some more familiar than others) that apply in both private law and political contexts. Part I sketches these features, illustrating them by reference to several recent cases in the United States.
The second goal is to show that these core features of fiduciary norms can transcend methodological disagreements among fiduciary political theorists. In Part II, we briefly describe these disagreements, contending that they threaten to distract attention from the substantial common ground among different fiduciary political theories. Our analysis, if correct, provides a framework for analyzing the actions of political officials and the structure of political institutions, regardless of how literally one thinks that fiduciary norms do (or should) apply to the political realm. Bracketing these methodological disagreements provides firmer ground for developing the most distinctive and powerful aspects of fiduciary political theory as an intellectual enterprise.
Keywords: Fiduciary Law, Fiduciary Political Theory, Cognitivism, Evan Fox-Decent
Suggested Citation: Suggested Citation