Sovereignty's Promise: The State As Fiduciary (oxford Constitutional Theory)
by Evan Fox-Decent /
2012 / English / PDF, EPUB
3.6 MB Download
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?
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?
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.
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.
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.