Matthew Harding, ‘Trust and Fiduciary Law’

How can it be that the fiduciary relationship has trust at its core if trust is neither a necessary nor a sufficient condition for the existence of such a relationship? My aim in this article is to make some arguments that I think might assist in solving that puzzle. First, I argue that fiduciary relationships are likely to be characterized by relatively ‘thick’ interpersonal trust. Secondly, I argue that moral duties referring to trust play a role in the justification of fiduciary duties, but that the role of trust in the underlying moral duties is contingent, yielding only a contingent connection between trust and fiduciary duties. Finally, I argue that a goal of fiduciary law should be enabling and supporting trusting relationships, but that this goal should be viewed within a broader liberal outlook according to which fiduciary law also enables and supports relationships on terms of detachment.

Harding, Matthew, Trust and Fiduciary Law (June 17, 2014). Oxford Journal of Legal Studies, Vol 33, No 1, 2013; U of Melbourne Legal Studies Research Paper No 686.

First posted 2014-06-18 06:16:03

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