Sovereignty's Promise

The State as Fiduciary

Nonfiction, Reference & Language, Law, Religion & Spirituality, Philosophy, Social & Cultural Studies, Political Science
Cover of the book Sovereignty's Promise by Evan Fox-Decent, OUP Oxford
View on Amazon View on AbeBooks View on Kobo View on B.Depository View on eBay View on Walmart
Author: Evan Fox-Decent ISBN: 9780191630217
Publisher: OUP Oxford Publication: December 8, 2011
Imprint: OUP Oxford Language: English
Author: Evan Fox-Decent
ISBN: 9780191630217
Publisher: OUP Oxford
Publication: December 8, 2011
Imprint: OUP Oxford
Language: English

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.

View on Amazon View on AbeBooks View on Kobo View on B.Depository View on eBay View on Walmart

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.

More books from OUP Oxford

Cover of the book Arabs in History by Evan Fox-Decent
Cover of the book EU Powers Under External Pressure by Evan Fox-Decent
Cover of the book Molecules at an Exhibition by Evan Fox-Decent
Cover of the book Sexually Transmitted Infections by Evan Fox-Decent
Cover of the book Alamein by Evan Fox-Decent
Cover of the book The Clash of Legitimacies by Evan Fox-Decent
Cover of the book Darwinian Populations and Natural Selection by Evan Fox-Decent
Cover of the book Contract Theory by Evan Fox-Decent
Cover of the book From International to Federal Market by Evan Fox-Decent
Cover of the book The Canterbury Tales by Evan Fox-Decent
Cover of the book The Cultural Dimension of Human Rights by Evan Fox-Decent
Cover of the book How Big is Big and How Small is Small by Evan Fox-Decent
Cover of the book The Framework of Corporate Insolvency Law by Evan Fox-Decent
Cover of the book Firm Commitment by Evan Fox-Decent
Cover of the book Varieties of Capitalism:The Institutional Foundations of Comparative Advantage by Evan Fox-Decent
We use our own "cookies" and third party cookies to improve services and to see statistical information. By using this website, you agree to our Privacy Policy