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Books > Humanities > Philosophy > Topics in philosophy > Social & political philosophy
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Sovereignty's Promise - The State as Fiduciary (Hardcover)
Loot Price: R2,203
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Sovereignty's Promise - The State as Fiduciary (Hardcover)
Series: Oxford Constitutional Theory
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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.
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