Jump to ContentJump to Main Navigation
Sovereignty's PromiseThe State as Fiduciary$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 02 December 2020

Procedural Fairness—A Pandora’s Box of Legality

Procedural Fairness—A Pandora’s Box of Legality

(p.175) VII Procedural Fairness—A Pandora’s Box of Legality
Sovereignty's Promise

Evan Fox-Decent

Oxford University Press

In Chapter VII I argue that the duty of procedural fairness is best explained and justified as a public fiduciary duty. The fiduciary theory offers a novel reply to the most familiar objection raised against the idea of a statute-independent duty of fairness. The objection is that judges illegitimately “make law” and violate the separation of powers when they impose procedural safeguards which lack a basis in statute. On the fiduciary theory, the freestanding duty of fairness arises from the actual fiduciary conditions of public administration. Thus, judges who impose the duty no more infringe the separation of powers than judges who vindicate rights at private law: in both cases, the relevant rights and obligations arise from the circumstances which attend the parties’ interaction.

Keywords:   procedural fairness, natural justice, Nicholson, Knight, Baker, Dunsmuir, separation of powers, common law constitutionalism, rule of law

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .