Fiduciary Government: Provenance, Promise, and Pitfalls

Abstract

The idea that the state is a fiduciary to its people has a long pedigree — ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This essay, which serves as an introduction to a new volume on “Fiduciary Government” (CUP 2018), contributes to the growing renaissance of public fiduciary theory. Drawing on the volume’s groundbreaking chapters, the essay explains how fiduciary principles yield new insights into a variety of important topics in legal and political theory. These topics include the proper roles of public officials and judges; the validity and operation of positive rights; and the concepts of political representation, legitimacy, and obligation. The essay also presents several important critiques of public fiduciary theory.

Keywords: fiduciaries, government, public officials, , purepresentation, legitimacy, corruptionblic trust, positive rights