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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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The Duty to Obey the Law

The Duty to Obey the Law

(p.113) V The Duty to Obey the Law
Sovereignty's Promise

Evan Fox-Decent

Oxford University Press

In Chapter V I test the fiduciary theory of legal authority by asking whether it can support a defeasible duty to obey the law. The currently popular view is that there is no such duty, even if the law (or legal regime) in question is reasonably just. I argue in favour of a defeasible duty to obey on grounds that the state is a public agent of necessity whose mandate is to establish legal order on behalf of everyone subject to its powers. As an agent, the state is entitled to bind its principals by announcing law, always subject to fiduciary constraints. The state is an agent of necessity because its legal authority arises directly from law, from the fiduciary principle, rather than from the consent of the people. The state is a public agent of necessity because it possesses and exercises public powers that private parties are not entitled to exercise.

Keywords:   agency, duty to obey, authority, parental obligation, agency of necessity, Simmons, Raz, consent

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