Hanoch Dagan, ‘Fiduciary Law and Pluralism’

This Essay introduces the idea of a plural legal category, namely, a legal category that is deeply heterogeneous and, nonetheless, legally meaningful. A wholesale category, I argue, should not be a category for deciding; pigeonholing a case within its ambit is not enough to justify any concrete decision. At times, however, holding on to such a category can still be useful because some heterogeneous legal categories can function as categories of thinking. Thus, a wholesale legal category is theoretically important if its sub-categories raise questions that invoke similar normative concerns or imply some similarity in the means that inform their pertinent answers. Furthermore, some such categories (or subsets thereof) may also be of practical significance. Plural categories are practically valuable when they expand the range of legal frameworks for people to organize their life in a certain sphere of activity or interaction and thus play a role in the liberal state’s obligation to enhance people’s autonomy.

This Essay, prepared for the Oxford Handbook of Fiduciary Law, offers a preliminary outline of this account of plural legal categories and demonstrates its promise regarding fiduciary law, which I analyze as a classic example of a plural legal category. Despite the significant differences between various fiduciary types, their structural similarities could facilitate learning and cross-fertilization and thereby justify holding such diverse categories as money managers, parents, and sovereigns under the unified umbrella of fiduciary law. Furthermore, since many fiduciary types enhance autonomy, the pertinent subsets of fiduciary law dealing with the facilitation of various forms of money management and division of labor can and should be critically examined against this important function of liberal law.

Dagan, Hanoch, Fiduciary Law and Pluralism (July 29, 2017). Oxford Handbook of Fiduciary Law (Evan J Criddle, Paul B Miller and Robert H Sitkoff eds, 2018 forthcoming).

First posted 2017-08-04 06:01:24

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