Fiduciary Law and the Law of Public Office

52 Pages Posted: 27 Jul 2020 Last revised: 16 Apr 2021

See all articles by Ethan J. Leib

Ethan J. Leib

Fordham University School of Law

Andrew Kent

Fordham University School of Law

Date Written: July 17, 2020

Abstract

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties within the law of public office—even if not its enforcement structure—reflected something that looks similar to modern fiduciary duties of loyalty and care.

In this Article, we extend the historical record describing this law of public office and make several new historical and theoretical claims. First, there are reasons to suspect that what we identify as the law of public office and what are now generally considered private fiduciary duties developed together and influenced each other. During the critical centuries we explore, the duties of officeholders such as trustees, executors, and corporate directors were developing alongside the duties of public officials such as tax collectors and government commissioners. Parliament and other actors repeatedly used the language of trust, trusteeship, guardianship, and account to define the law of public offices. Additionally, public law concerns about abuse of power and the need for honesty, fidelity, and altruism in service of others may have seeped from public law into private fiduciary law. Influential political theory about the monarchy and lesser magistrates also used trust and related legal language to set forth a fiduciary conception of public officeholding; the theoretical developments in political theory not only drew from legal concepts but also may have helped shape them.

One Article cannot decisively establish whether the similarities in language, concepts, and timing were mere coincidence or rather evidence of some conscious codevelopment in the law of public offices and fiduciary law. Proving (or disproving) actual causal relationships will need to be the work of the future. We conclude with some potential implications for our research, should further work continue to confirm our findings here. In short, fiduciary political theorists should be less anxious about drawing from private law models, and private law fiduciary theorists might need to be less insistent on the purity of the private sphere. Our research agenda invites more mutual learning—both historically and for law and institutions today.

Keywords: fiduciary law; fiduciary duties; law of public office; faithful execution; republican political theory

Suggested Citation

Leib, Ethan J. and Kent, Andrew, Fiduciary Law and the Law of Public Office (July 17, 2020). 62 William & Mary Law Review 1297 (2021), Fordham Law Legal Studies Research Paper No. 3654506, Available at SSRN: https://ssrn.com/abstract=3654506 or http://dx.doi.org/10.2139/ssrn.3654506

Ethan J. Leib

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

Andrew Kent (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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