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Sovereignty's PromiseThe State as Fiduciary$
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Evan Fox-Decent

Print publication date: 2011

Print ISBN-13: 9780199698318

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199698318.001.0001

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Introduction: The State as Fiduciary and the Rule of Law

Introduction: The State as Fiduciary and the Rule of Law

(p.23) I Introduction: The State as Fiduciary and the Rule of Law
Sovereignty's Promise

Evan Fox-Decent

Oxford University Press

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

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