ABSTRACT
Some judges and scholars hold that within legal limits and across legal frameworks, there is just a legal void, a domain in which law is absent. I challenge the legal void thesis, arguing that law operates within the spaces law creates. Law governs the interstitial spaces that exist within legal limits and across frameworks, I claim, through its possession and assertion of legitimate authority. Importantly, its spatially seamless assertion of legitimate authority relies on a relationship of mutual trust between law-giver and legal subject.
The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature and effects of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes suggests that public authority may be understood to have arisen from an original covenant to which all subjects consent and by which the sovereign comes to enjoy the subjects’ authorization. Yet once legal institutions are in place, Hobbes tends to use the language of trust to characterize the position of the sovereign and other public officials. And, Hobbes thinks the very possibility of being a subject rather than a captive slave depends on the sovereign trusting the subject with liberty, thus making the trust relationship between sovereign and subject mutual. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials.
Fox-Decent, Evan, Trust and Authority (May 30, 2019). Fiduciaries and Trust: Ethics, Politics, Economics and Law, Paul B Miller and Matthew Harding, eds (CUP 2019 forthcoming).
First posted 2019-06-15 06:41:24
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