Sovereignty's promise : the state as fiduciary / Evan Fox-Decent.

Format:

Book

Author/Creator:

Fox-Decent, Evan.

Series:

Oxford constitutional theory.

Oxford constitutional theory

Language:

English

Subjects (All):

Authority.

Sovereignty.

Physical Description:

1 online resource (302 p.)

Place of Publication:

Oxford ; New York : Oxford University Press, 2011.

Language Note:

English

Summary:

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

Contents:

Cover; Contents; Epigraph; Table of Cases and Legislation; Prologue-Hobbes and Legal Order; 1. The demands of legality; 2. The people as the authors of sovereignty; 3. The constitution of legal order; 4. Trust as the basis of the state-subject relationship; Chapter I-Introduction: The State as Fiduciary and the Rule of Law; 1.1 Introduction: Roncarelli and the fact of sovereignty; 1.2 A brief history of the fiduciary concept; 1.3 Towards fiduciary duties in public settings; 1.4 A legal conception; 1.5 A relational conception; 1.6 A Kantian, interactional conception

1.7 A challenge to libertarianism1.8 Beyond the state; 1.9 Summary of the argument; PART I-THE CROWN-NATIVE FIDUCIARY RELATIONSHIP; Chapter II-Seeking Sovereignty; 2.1 Introduction; 2.2 Guerin, Sparrow, and the resistance of Aboriginal treaty rights to dualism; 2.3 The basis of the Crown-Native fiduciary relationship; 2.4 The limits of the Crown's legitimacy; Chapter III-Some Objections; 3.1 Introduction; 3.2 Paternalism, colonialism, and legal pluralism; 3.3 Reconciling competing claims; 3.4 The sui generis argument; PART II-THE FIDUCIARY THEORY OF THE STATE

Chapter IV-Fiduciary Relationships and the Presumption of Trust4.1 Introduction; 4.2 The nature of sovereignty; 4.3 Fiduciary relationships and the presumption of trust; 4.4 Relationships arising by operation of law; 4.5 Do fiduciary obligations rely on voluntary undertakings?; 4.6 Fiduciary power as administrative power; 4.7 Vulnerability as incapacity; 4.8 Trust as the basis of the fiduciary's authority and duty; 4.9 Pure fiduciary duties and their reliance on trust; 4.10 The state as fiduciary-the subject's trust in the state; Chapter V-The Duty to Obey the Law; 5.1 Introduction

5.2 The terms of the debate5.3 The limits of consent; 5.4 Parental authority; 5.5 The legitimacy of legality; 5.6 A fiduciary theory of the duty to obey the law; 5.7 Opting out; 5.8 A public agent of necessity; PART III-THE FIDUCIARY NATURE OF THE RULE OF LAW; Chapter VI-Judicial Ambivalence to Public Fiduciary Duties; 6.1 Introduction; 6.2 Political trusts; 6.3 Authorson: Guerin extended; 6.4 Harris: Guerin retrenched; 6.5 English law's marriage of administrative power to fiduciary duty; 6.6 Cross-fertilization between public and private fiduciary contexts

6.7 The emergence of public fiduciary duties6.8 The paucity of fiduciary doctrine in public law; Chapter VII-Procedural Fairness-A Pandora's Box of Legality; 7.1 Introduction; 7.2 Procedural fairness as a public fiduciary duty; 7.3 The justification requirement; 7.4 Contextualism, content, and important interests; 7.5 The Dunsmuir reversal; Chapter VIII-Administrative Law as Solicitude-Reasonable Decision-Making; 8.1 Introduction; 8.2 The legitimacy of the administrative state; 8.3 From jurisdictional review to deference?; 8.4 Deference as a postulate of the rule of law

8.5 The content of deference

Notes:

Description based upon print version of record.

Includes bibliographical references (p. [266]-275) and index.

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

0-19-173217-6

1-283-58012-8

9786613892577

0-19-163020-9

OCLC:

801363579