Sovereignty's Promise: The State as Fiduciary by Evan Fox-DecentSovereignty's Promise: The State as Fiduciary by Evan Fox-Decent

Sovereignty's Promise: The State as Fiduciary

byEvan Fox-Decent

Hardcover | January 26, 2012

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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. Thefiduciary 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 torespect 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 standin 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 administrativelaw and common law constitutionalism. The final chapter situates the theory within a broader philosophical discussion of the rule of law.
Evan Fox-Decent is Associate Professor of the Faculty of Law, McGill University. He teaches and publishes in legal theory, administrative law, First Nations and the law, immigration law, the law of fiduciaries, and human rights. He has worked on human rights and democratic governance reform in Latin America since 1987. He has served w...
Title:Sovereignty's Promise: The State as FiduciaryFormat:HardcoverDimensions:335 pagesPublished:January 26, 2012Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199698317

ISBN - 13:9780199698318

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Table of Contents

Prologue: Hobbes and Legal Order1. Introduction: The State as Fiduciary and the Rule of Law2. Seeking Sovereignty3. Some Objections4. Fiduciary Relationships and the Presumption of Trust5. The Duty to Obey the Law6. Judicial Ambivalence to Public Fiduciary Duties7. Procedural Fairness - A Pandora's Box of Legality8. Administrative Law as Solicitude - Reasonable Decision-Making9. The Rule of Law and Human Rights