Sovereignty's Promise The State as Fiduciary

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  • Format: Hardcover
  • Copyright: 2012-02-20
  • Publisher: Oxford University Press

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Constitutional 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 fiduciary 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 and responsive to public power's indifference to consent. 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 then 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 recognised 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, and in the final chapter situates the theory within a broader philosophical discussion of the rule of law.

Table of Contents

Epigraphp. xiii
Table of Cases and Legislationp. xv
PrologueùHobbes and Legal Orderp. 1
The demands of legalityp. 1
The people as the authors of sovereigntyp. 5
The constitution of legal orderp. 13
Trust as the basis of the state-subject relationshipp. 19
Introduction: The State as Fiduciary and the Rule of Lawp. 23
Introduction: Roncarelli and the fact of sovereigntyp. 23
A brief history of the fiduciary conceptp. 30
Towards fiduciary duties in public settingsp. 34
A legal conceptionp. 37
A relational conceptionp. 40
A Kantian, interactional conceptionp. 41
A challenge to libertarianismp. 47
Beyond the statep. 48
Summary of the argumentp. 48
The Crown-Native Fiduciary Relationship
Seeking Sovereigntyp. 55
Introductionp. 55
Guerin, Sparrow, and the resistance of Aboriginal treaty rights to dualismp. 57
The basis of the Crown-Native fiduciary relationshipp. 62
The limits of the Crown's legitimacyp. 69
Some Objectionsp. 75
Introductionp. 75
Paternalism, colonialism, and legal pluralismp. 76
Reconciling competing claimsp. 78
The sui generis argumentp. 80
The Fiduciary Thoery of the State
Fiduciary Relationships and the Presumption of Trustp. 89
Introductionp. 89
The nature of sovereigntyp. 90
Fiduciary relationships and the presumption of trustp. 93
Relationships arising by operation of lawp. 94
Do fiduciary obligations rely on voluntary undertakings?p. 95
Fiduciary power as administrative powerp. 96
Vulnerability as incapacityp. 101
Trust as the basis of the fiduciary's authority and dutyp. 105
Pure fiduciary duties and their reliance on trustp. 110
The state as fiduciaryùthe subject's trust in the statep. 111
The Duty to Obey the Lawp. 113
Introductionp. 113
The terms of the debatep. 114
The limits of consentp. 116
Parental authorityp. 121
The legitimacy of legalityp. 125
A fiduciary theory of the duty to obey the lawp. 128
Opting outp. 135
A public agent of necessityp. 140
The Fiduciary Nature of the rule of Law
Judicial Ambivalence to Public Fiduciary Dutiesp. 151
Introductionp. 151
Political trustsp. 153
Authorson: Guerin extendedp. 155
Harris: Guerin retrenchedp. 157
English law's marriage of administrative power to fiduciary dutyp. 159
Cross-fertilization between public and private fiduciary contextsp. 164
The emergence of public fiduciary dutiesp. 167
The paucity of fiduciary doctrine in public lawp. 171
Procedural FairnessùA Pandora's Box of Legalityp. 175
Introductionp. 175
Procedural fairness as a public fiduciary dutyp. 177
The justification requirementp. 186
Contextualism, content, and important interestsp. 191
The Dunsmuir reversalp. 194
Administrative Law as SolicitudeùReasonable Decision-Makingp. 202
Introductionp. 202
The legitimacy of the administrative statep. 205
From jurisdictional review to deference?p. 208
Deference as a postulate of the rule of lawp. 214
The content of deferencep. 217
Fundamental valuesp. 221
Public justificationp. 225
Fundamental values and deference as respect cut downp. 228
Conclusionp. 233
The Rule of Law and Human Rightsp. 234
Introductionp. 234
The internal morality and the fiduciary interpretation of reciprocityp. 238
Fuller's appreciation of freedom and dignityp. 244
Raz and slaveryp. 249
The moral difference the internal morality necessarily makesp. 255
From the rule of law to human rightsp. 261
Is the rule of law now just the rule of good law?p. 262
Bibliographyp. 266
Indexp. 277
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