Sovereignty's Promise: The State as Fiduciary
Evan Fox-Decent - Oxford University Press, 2011 Anteprima del libro
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Political theory is traditionally
concerned with the justification and limits of state power. It asks: Can states
legitimately direct and coerce non-consenting subjects? If they can, what
limits, if any, constrain sovereign power? Public law is concerned with the
justification and limits of judicial power. It asks: On what grounds can judges
'read down' or 'read in' statutory language against the apparent intention of
the legislature? What limits, if any, are appropriate to these exercises of
judicial power? This book develops an original constitutional theory of
political authority that yields novel answers to both sets of questions.
Fox-Decent argues that the state is a fiduciary of its people, and that this
fiduciary relationship grounds the state's authority to announce and enforce
law. The fiduciary state is conceived of as a public agent of necessity charged
with guaranteeing a regime of secure and equal freedom. Whereas the social
contract tradition struggles to ground authority on consent, the fiduciary
theory explains authority with reference to the state's fiduciary obligation to
respect legal principles constitutive of the rule of law. This obligation arises
from the state's possession of irresistible public powers. The author begins
with a discussion of Hobbes's conception of legality and the problem of
discretionary power in administrative law. Drawing on Kant, he sketches a theory
of fiduciary relations, and develops the argument through three parts. Part I
shows that it is possible for the state to stand in a public fiduciary
relationship to its people through a discussion of Crown-Native fiduciary
relations recognized by Canadian courts. Part II sets out the theoretical
underpinnings of the fiduciary theory of the state. Part III explores the
implications of the fiduciary theory for administrative law and common law
constitutionalism. The final chapter situates the theory within a broader
philosophical discussion of the rule of law.
