Sovereignty's Promise: The State as Fiduciary (Oxford Constitutional Theory)

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. Cover 1 Contents 10 Epigraph 14 Table of Cases and Legislation 16 Prologue—Hobbes and Legal Order 20 1. The demands of legality 20 2. The people as the authors of sovereignty 24 3. The constitution of legal order 32 4. Trust as the basis of the state-subject relationship 38 Chapter I—Introduction: The State as Fiduciary and the Rule of Law 42 1.1 Introduction: Roncarelli and the fact of sovereignty 42 1.2 A brief history of the fiduciary concept 49 1.3 Towards fiduciary duties in public settings 53 1.4 A legal conception 56 1.5 A relational conception 59 1.6 A Kantian, interactional conception 60 1.7 A challenge to libertarianism 66 1.8 Beyond the state 67 1.9 Summary of the argument 67 PART I—THE CROWN-NATIVE FIDUCIARY RELATIONSHIP 72 Chapter II—Seeking Sovereignty 74 2.1 Introduction 74 2.2 Guerin, Sparrow, and the resistance of Aboriginal treaty rights to dualism 76 2.3 The basis of the Crown-Native fiduciary relationship 81 2.4 The limits of the Crown’s legitimacy 88 Chapter III—Some Objections 94 3.1 Introduction 94 3.2 Paternalism, colonialism, and legal pluralism 95 3.3 Reconciling competing claims 97 3.4 The sui generis argument 99 PART II—THE FIDUCIARY THEORY OF THE STATE 106 Chapter IV—Fiduciary Relationships and the Presumption of Trust 108 4.1 Introduction 108 4.2 The nature of sovereignty 109 4.3 Fiduciary relationships and the presumption of trust 112 4.4 Relationships arising by operation of law 113 4.5 Do fiduciary obligations rely on voluntary undertakings? 114 4.6 Fiduciary power as administrative power 115 4.7 Vulnerability as incapacity 120 4.8 Trust as the basis of the fiduciary’s authority and duty 124 4.9 Pure fiduciary duties and their reliance on trust 129 4.10 The state as fiduciary—the subject’s trust in the state 130 Chapter V—The Duty to Obey the Law 132 5.1 Introduction 132 5.2 The terms of the debate 133 5.3 The limits of consent 135 5.4 Parental authority 140 5.5 The legitimacy of legality 144 5.6 A fiduciary theory of the duty to obey the law 147 5.7 Opting out 154 5.8 A public agent of necessity 159 PART III—THE FIDUCIARY NATURE OF THE RULE OF LAW 168 Chapter VI—Judicial Ambivalence to Public Fiduciary Duties 170 6.1 Introduction 170 6.2 Political trusts 172 6.3 Authorson: Guerin extended 174 6.4 Harris: Guerin retrenched 176 6.5 English law’s marriage of administrative power to fiduciary duty 178 6.6 Cross-fertilization between public and private fiduciary contexts 183 6.7 The emergence of public fiduciary duties 186 6.8 The paucity of fiduciary doctrine in public law 190 Chapter VII—Procedural Fairness—A Pandora’s Box of Legality 194 7.1 Introduction 194 7.2 Procedural fairness as a public fiduciary duty 196 7.3 The justification requirement 205 7.4 Contextualism, content, and important interests 210 7.5 The Dunsmuir reversal 213 Chapter VIII—Administrative Law as Solicitude—Reasonable Decision-Making 221 8.1 Introduction 221 8.2 The legitimacy of the administrative state 224 8.3 From jurisdictional review to deference? 227 8.4 Deference as a postulate of the rule of law 233 8.5 The content of deference 236 8.6 Fundamental values 240 8.7 Public justification 244 8.8 Fundamental values and deference as respect cut down 247 8.9 Conclusion 252 Chapter IX—The Rule of Law and Human Rights 253 9.1 Introduction 253 9.2 The internal morality and the fiduciary interpretation of reciprocity 257 9.3 Fuller’s appreciation of freedom and dignity 263 9.4 Raz and slavery 268 9.5 The moral difference the internal morality necessarily makes 274 9.6 From the rule of law to human rights 280 9.7 Is the rule of law now just the rule of good law? 281 Bibliography 285 Index 296 A 296 B 296 C 296 D 297 E 297 F 297 G 299 H 299 I 299 J 299 K 299 L 299 M 300 N 300 O 300 P 300 R 301 S 301 T 302 U 302 V 302 W 302 Constitutional theory is traditionally concerned with the justification and limits of state power. It 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 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. Content: Prologue. Hobbes and legal order -- Introduction. The state as fiduciary and the rule of law -- Seeking sovereignty -- Some objections -- Fiduciary relationships and the presumption of trust -- The duty to obey the law -- Judicial ambivalence to public judiciary duties -- Procedural fairness : a pandora's box of legality -- Administrative law as solicitude : reasonable decision-making -- The rule of law and human rights. Arguing that the state and its people stand in a fiduciary relationship, Sovereignty's Promise puts forward a bold new account of political authority and its legal limits. In doing so it presents a fresh argument for common law constitutionalism and a novel theoretical framework for understanding the requirements of the rule of law. Arguing that the state and its people stand in a fiduciary relationship, 'Sovereignty's Promise' puts forward an account of political authority and its legal limits. In doing so it presents an argument for common law constitutionalism and a theoretical framework for understanding the requirements of the rule of law