EBOOK Sovereignty's Promise:The State as Fiduciary -

EBOOK Sovereignty's Promise:The State as Fiduciary
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Wydawnictwo: Oxford University Press
ISBN: 9780191630217
EAN: 04969BC9EB
Format: 0,0 x 0,0 x 0,0
Oprawa: ...
Stron: 304
Data wydania: 2011
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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 fiduciarytheory 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.

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