Fiduciary Theory: The Missing Piece for Positive Rights
Laura S. Underkuffler, Fiduciary Theory: The Missing Piece for Positive Rights, in Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim, & Paul B Miller, Fiduciary Government 96 (Cambridge University Press 2018).
29 Pages Posted: 6 Mar 2020
Date Written: 2018
Finding an unassailable grounding for positive rights is notoriously difficult. For those who live under a stated regime of the protection of negative liberties, or liberties from government, the idea of positive rights sits uncomfortably at best. Positive-rights claims such as the right to food, shelter, medical care, or other subsistence—claims that would require action in the derogation of existing distributions and entitlements—seem to be in clear violation of fundamental beliefs about the functions and purposes of government. In this chapter, it is argued that this conclusion about positive rights is false. In fact, there is an undeniable imperative that government recognize positive rights. The grounding for that imperative is found not in some extrinsic source, such as constitutional command or moral ideas, but in the intrinsically fiduciary nature of the government/citizen relationship itself.
Keywords: positive rights, fiduciary obligations, fiduciary theory of government, constitutional law, government – fiduciary obligations, positive rights – justiciability, property and positive rights, right to food, right to medical care, right to shelter
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