Chapter

Introduction: The State as Fiduciary and the Rule of Law

Evan Fox-Decent

in Sovereignty's Promise

Published in print December 2011 | ISBN: 9780199698318
Published online January 2012 | e-ISBN: 9780191732171 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199698318.003.0002

Series: Oxford Constitutional Theory

Introduction: The State as Fiduciary and the Rule of Law

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Roncarelli v Duplessis is arguably the most significant case on the rule of law in Canadian public law. I use it to explain various puzzles presented by judicial impositions of common law duties. I also sketch how the assumption of sovereign powers by the state (the “fact of sovereignty”) gives rise to a fiduciary relationship between the state and the people. I elaborate on various features of the fiduciary view of the state, claiming that it has legal, relational and Kantian dimensions. I use Kant’s discussion of parent-child relations to bring out the moral basis of the beneficiary’s right to the fiduciary’s obligation. I further explain how the fiduciary view poses a challenge to libertarianism by taking on board merely Kant’s austere theory of abstract right as its normative foundation. I conclude with a summary of the argument that informs the annotations to the chapters below.

Keywords: Roncarelli; rule of law; sovereignty; Kant; fiduciary; common law constitutionalism; review of discretion

Chapter.  14279 words. 

Subjects: Constitutional and Administrative Law

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