Private Law Theory

Abstract:
In recent years, the fiduciary theory of the state has been offered as an alternative to theories rooted in the social contract tradition. The fiduciary model provides an evocative basis for rethinking the nature and limits of state authority. It also promises to account for the obligations of states to citizens and other persons subject to state jurisdiction or for whom a state may provide relief or refuge. Amongst other things, the fiduciary theory is said to afford a principled justification for recognition of positive obligations of states to secure human rights at home and abroad. The present chapter invites scrutiny of these and other claims by querying the extent to which public fiduciary authority can be assimilated with private fiduciary authority. It suggests that private and public forms of fiduciary authority enjoy some common properties but equally that there are important differences; differences that are reflected in the structure and substance of fiduciary accountability rules. After accounting for these differences, the chapter articulates a set of principles common to private and public forms of fiduciary administration. These principles may provide a reliable guide to the kinds of normative claims that may be made against the state on the basis of the fiduciary nature of state authority.

Miller, Paul B, Principles of Public Fiduciary Administration (June 3, 2015). Forthcoming in: A Scolnicov and T Kahana, eds, Boundaries of State, Boundaries of Rights (Cambridge: Cambridge University Press).

First posted 2015-06-10 05:25:11