III. THE NEW POPULAR SOVEREIGNTY: FIDUCIARY STATES IN INTERNATIONAL LAW ...................... 34... more III. THE NEW POPULAR SOVEREIGNTY: FIDUCIARY STATES IN INTERNATIONAL LAW ...................... 347 A. Fiduciary Relationships and the State as Fiduciary......................................... .............. 349 B. Kant's Model of Fiduciary Relations....................................................................... ...
Fiduciaries and Trust: Ethics, Politics, Economics and Law, Paul B. Miller and Matthew Harding, eds. (forthcoming CUP), 2019
Some judges and scholars hold that within legal limits and across legal frameworks, there is just... more Some judges and scholars hold that within legal limits and across legal frameworks, there is just a legal void, a domain in which law is absent. I challenge the legal void thesis, arguing that law operates within the spaces law creates. Law governs the interstitial spaces that exist within legal limits and across frameworks, I claim, through its possession and assertion of legitimate authority. Importantly, its spatially seamless assertion of legitimate authority relies on a relationship of mutual trust between law-giver and legal subject.
The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature and effects of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes suggests that public authority may be understood to have arisen from an original covenant to which all subjects consent and by which the sovereign comes to enjoy the subjects’ authorization. Yet once legal institutions are in place, Hobbes tends to use the language of trust to characterize the position of the sovereign and other public officials. And, Hobbes thinks the very possibility of being a subject rather than a captive slave depends on the sovereign trusting the subject with liberty, thus making the trust relationship between sovereign and subject mutual. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials.
Philosophical Foundations of the Law of Equity, 2019
I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is ... more I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is much more speculative. The first two related ideas are that Equity has the characteristic form of public law, and that Equity shares public law’s basic concern, which is to regulate power held by one party for the benefit of another. Equity and public law alike are structured by the presence of other-regarding power in the legal relations they govern. The third related idea is that the legal form of Equity and public law answers to a particular kind of justice that is neither corrective justice nor distributive justice, but what I call jurisdictional justice. The speculative idea I consider is that Equity is best regarded as a species of public law.
I refer to the conjunction of the first three ideas as the weak public law theory of Equity. This theory is consistent with Equity belonging on either side of the private law/public law divide. I refer to the conjunction of all four claims as the strong public law theory of Equity. On this account, Equity is a species of public law. My aim is to defend the weak public law theory, identify some of the obstacles that stand in the way of the strong theory, and then nonetheless offer some tentative arguments that aim to show some of the features and possible merits of the strong theory.
In Part II I distinguish Equity’s anti-opportunism law, which involves cases of rights sticklers and opportunists, and Equity’s jurisdictional law, which is mainly cases involving fiduciary relations, such as trusts or agency relations. Part III compares trust law and administrative law, and a series of doctrines they share. In Part IV I discuss other-regarding powers. These powers are a defining and structural feature of Equity. Their significance to Equity is the principal basis for thinking that Equity has the form of public law. In Part V I argue that Equity is structured by jurisdictional justice. This is the form of justice apposite to supervisory review of the exercise of other-regarding powers. Its structure is plainly evident in Equity’s jurisdictional law. In Part VI I argue that this mode of justice is also present in Equity’s anti-opportunism law. In Part VII I canvas some of the advantages of the weak and strong public law theories, and their explanatory power.
The idea that the state is a fiduciary to its people has a long pedigree — ultimately reaching ba... more The idea that the state is a fiduciary to its people has a long pedigree — ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This essay, which serves as an introduction to a new volume on “Fiduciary Government” (CUP 2018), contributes to the growing renaissance of public fiduciary theory. Drawing on the volume’s groundbreaking chapters, the essay explains how fiduciary principles yield new insights into a variety of important topics in legal and political theory. These topics include the proper roles of public officials and judges; the validity and operation of positive rights; and the concepts of political representation, legitimacy, and obligation. The essay also presents several important critiques of public fiduciary theory.
In their provocative essay, Interpersonal Human Rights, Dagan and Dorfman argue that when private... more In their provocative essay, Interpersonal Human Rights, Dagan and Dorfman argue that when private parties from different national jurisdictions interact, their interaction is properly subject to a distinctive regime of private law they call jus gentium privatum. In this comment, I draw attention to two dimensions of the Dagan/Dorfman project. The first is internal, and involves an examination of Dagan and Dorfman’s basic argument from privity in favor of the jus gentium privatum. I suggest there is tension between their use of a formal concept of privity, on the one hand, and their theory of private law, on the other. The second dimension I explore pertains to characterization, and interrogates Dagan and Dorfman’s description of the jus gentium privatum as a regime of interpersonal human rights. I ask after what Dagan and Dorfman mean here by “interpersonal,” since the human rights duty-bearer of international law — the state — is a person, too.
This symposium piece discusses the way the Supreme Court of Canada in its 2008 Dunsmuir decision ... more This symposium piece discusses the way the Supreme Court of Canada in its 2008 Dunsmuir decision returned to jurisdiction as a key analytic device with which to conduct judicial review of administrative action. The Court did so, however, without offering a method to distinguish jurisdictional errors of law from non-jurisdictional errors. Without such a method, judicial review is at risk of abandoning its commitment to deference and reverting to an interventionist approach on the back of purported jurisdictional errors.
This Article challenges the conventional wisdom that states are always free to choose whether to ... more This Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. We argue that contemporary international law requires multilateralism in at least five domains: (1) disputes involving rivalrous claims to territorial jurisdiction, (2) disputes involving conflicting legal entitlements, (3) the administration of common resources, (4) threats to international peace and security, and (5) grave breaches of international human rights and international criminal law.
International law’s commitment to mandatory multilateralism, we claim, is explained by its organizing principles of sovereign equality and joint stewardship. Sovereign equality provides for states’ mutual independence within an international legal order structured in part by a prohibition on unilateralism. Similarly, when international law assigns collective responsibility to states to regulate certain global public goods (e.g., the deep ocean floor, international peace and security), joint stewardship dictates that states must regulate those goods multilaterally rather than unilaterally.
Where mandatory multilateralism applies, it imposes a substantive requirement that states pursue equitable solutions to controversies by balancing their own legal interests with the interests of others. States also bear procedural obligations to investigate and consult with other interested states, negotiate in good faith, and if negotiations stall, submit to third-party dispute resolution. If states are unable to agree on a negotiated solution or a forum for arbitration, they must maintain a dialogue and refrain from taking steps that would prejudice negotiations.
The final section of the Article explains how mandatory multilateralism offers lessons with respect to three current controversies: the South China Sea dispute, the United States’ pending withdrawal from the 2015 Paris Agreement, and Bolivia’s efforts to compel Chile to negotiate over territorial access to the Pacific.
forthcoming in Bomhoff, Dyzenhaus, Poole (eds) The Double-Facing Constitution (CUP 2019)
I argue that the public law of a state that governs its interactions with outsiders –- the state’... more I argue that the public law of a state that governs its interactions with outsiders –- the state’s cosmopolitan law -- must have a certain outward orientation and representative character if it is to be law, properly so-called. Drawing on interpretative and normative work with Evan Criddle on international law, I deploy a criterion of legitimacy we develop in that work to make a conceptual claim about the nature of law. This criterion lays down that for a state’s action to be legitimate with respect to a given individual, it must be intelligible as action made on behalf of or in the name of the individual subject to it, even if the state’s action sets back the interests of the individual. The criterion is both normative and conceptual, and here I argue that it can help explain and inform the conceptual moral claim that, according to Raz, all legal systems necessarily make; i.e., the claim to possess legitimate authority. On this view, it is an existence condition of a legal system that it claims to possess legitimate authority.
To bring the criterion of legitimacy from my work with Criddle into contact with Raz’s conceptual claim, I look first to the legal effects of peremptory or jus cogens norms of international law, and in particular, the prohibition against slavery. I argue that no regime that maintains slave laws can possibly claim to assert legitimate authority over slaves, because no such regime could be understood to assert slave laws on behalf of them. Such laws manifestly violate both the criterion of legitimacy and Raz’s conceptual condition.
The next step is to show that if the state’s cosmopolitan law does not satisfy the criterion of legitimacy in relation to outsiders, then the state treats them as possessing a status akin to slaves. Such a state would interact with outsiders using mere coercive force rather than law. If this argument is sound, it will show that slavery is not a special case of a failure of law, and it will strengthen the argument in favour of turning to the representational criterion of legitimacy as the content of the law’s moral claim. When the law speaks it makes a moral claim because, to be law rather than mere coercive force, it necessarily claims to speak in a representative capacity for everyone subject to its authority, including peaceful outsiders who arrive at the border and wish to come in.
In recent years, scholars have deployed fiduciary concepts to explain or illuminate a dizzying ar... more In recent years, scholars have deployed fiduciary concepts to explain or illuminate a dizzying array of public law regimes and institutions. To name but a few, this array includes constitutional law, administrative law, common law constitutionalism, international law, international human rights law, the law of judging, the law governing legislators, the law governing indigenous peoples, the law of armed conflict, national security and emergencies law, and international refugee law. The sheer range of topics treated may give the impression that there are few, if any, new frontiers in public fiduciary law. I argue that quite the opposite is true: the frontiers of public fiduciary law are vast and open. They are so because public fiduciary theory, within its domain (the domain of public law), is an interpretive theory of everything. I suggest that the theory underlying public fiduciary law is a theory of everything with respect to public law because the theory illuminates the salient features of the representative structure of public fiduciary relations. The most general normative implication of this representative conceptual structure is that office holders are under an obligation to exercise their power in a manner that can be understood as in the name of or on behalf of the persons subject to it. With this theory in place, we can explain why the frontiers are wide open in every sphere of public law—national, international, cosmopolitan, and transnational—and why they are just as expansive with respect to public fiduciary law and its relation to democracy, future generations, alternative theoretical frameworks, and jurisprudential inquiry. Indeed, the new frontiers of public fiduciary law are not simply open and expansive. They are also inviting.
Critics of public fiduciary theory have argued that public officials and institutions cannot prop... more Critics of public fiduciary theory have argued that public officials and institutions cannot properly be considered “fiduciaries” because the duty of loyalty does not permit a fiduciary to serve two masters with conflicting interests. We argue that this critique of public fiduciary theory is overstated because it rests on a false distinction between private and public fiduciary relationships. Conflicts of duty that arise in public fiduciary relationships are not categorically different from those that arise in private fiduciary relationships.
In some cases, the fiduciary owes not only discrete “first-order” duties to the beneficiary, but also wider “second-order” duties to the broader public or to public purposes. First-order fiduciary duties are the familiar legal duties that a fiduciary owes to her beneficiary. Second-order fiduciary duties emanate from a separate fiduciary relationship between the fiduciary and public-regarding institutions that have been entrusted to the fiduciary’s administration. Second-order fiduciary duties therefore serve a different and more systemic purpose: they ensure that a fiduciary’s loyalty to her beneficiary does not compromise other institutions entrusted to her care that are designed to provide equal freedom under the rule of law.
Part I of our paper uses two examples of fiduciary relationships governed primarily by private law — lawyers and physicians — to illustrate how second-order fiduciary duties operate. While lawyers are required to act in the best interests of their clients (first-order), they also bear a variety of prescriptive and proscriptive duties as officers of the court to promote the just and orderly administration of justice (second-order). Physicians likewise bear both first-order duties to their patients and second-order duties to the broader public, including obligations to prevent serious threats that their patients pose to others. Part II explains how second-order fiduciary duties contribute to the deontic legal structure of public offices and institutions. In particular, clarifying how second-order duties operate in public law helps to explain what kinds of legal obligations public authorities bear to whom and why. Part III demonstrates that national authorities also bear second-order fiduciary duties under international law. As fiduciaries of humanity, states are legally obligated to govern cooperatively so as to protect human rights for the benefit of international society as a whole.
Over the past decade, a growing number of legal and political theorists have looked to ideas of t... more Over the past decade, a growing number of legal and political theorists have looked to ideas of trusteeship and fiduciary relations to explain foundational concepts associated with the rule of law, constitutional government, the role of judges and legislators, and the idea of public authority itself. Professor Evan Criddle and I have contributed to this literature by arguing that fiduciary principles can help explain administrative law and international law. This public fiduciary literature has attracted thoughtful and nuanced critiques. Some of the critiques reject the public fiduciary project outright, while others are of a more in-house variety, and take exception to some of the arguments I have defended, either solely or with Professor Criddle. In this chapter I reply to the thorough-going critiques of Timothy Endicott and Seth Davis, and the in-house criticism of Paul Miller.
Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically fro... more Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically from the moral and political conceptions of international human rights law (IHRL) that dominate the literature. Rather than grounding human rights on features of our shared humanity (the moral, orthodox conception) or on their role in global politics (the political conception), Macklem claims that the point and purpose of IHRL is to mitigate the adverse effects produced by the structure and operation of international law itself, and in particular, the adverse effects of its distribution of sovereignty to some entities – states – and not others.
In this review essay, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible, and then calls on IHRL to serve a remedial and legitimating function from within international law itself.
Macklem, however, subscribes to a positivist legal theory that is closer to Austin’s command theory than Hart or Raz’s positivism. As a consequence, Macklem’s theory struggles to account for the authority of IHRL. In the final section of the paper I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of or on behalf of whomever is subject to them.
For centuries, prominent jurists and political theorists have looked to private fiduciary relatio... more For centuries, prominent jurists and political theorists have looked to private fiduciary relationships such as trusteeship, agency, and guardianship to explain and justify the authority of public officials and public institutions. This tradition has attracted increasing interest over the past decade, as legal scholars have used fiduciary concepts to elucidate important features of public law, from the nature and design of constitutional government, to the legal obligations that attend public offices such as judge and legislator. We have contributed to this revival of public fiduciary theory by showing that fiduciary principles can explain and justify the structure and content of administrative law and international law.
In an essay published recently in the Yale Law Journal, Professors Ethan Leib and Stephen Galoob argue that public fiduciary theory applies to some domains of public law but not others because these other domains “are incompatible with the basic structure of fiduciary norms.” In defending this claim, Leib and Galoob draw on and develop a revisionist theory of fiduciary law that is grounded in ethical and deliberative norms traditionally associated with affective relationships such as friendship. Based on this theory, they contend that public fiduciary theory applies only to relationships in which one party (the fiduciary) bears robust deliberative obligations, including a freestanding motivational requirement to attribute “nonderivative significance” to the interests of another party (the beneficiary). Leib and Galoob believe that these alleged deliberative characteristics of fiduciary relationships categorically rule out our arguments for using public fiduciary theory to explain and justify existing international law and its institutions.
In this Reply, we explain why the Leib-Galoob critique of public fiduciary theory misses the mark. Part I shows that their critique is based on a theory of fiduciary relations that is in tension with well-established features of private fiduciary law. Because their theory of fiduciary relations cannot explain core aspects of fiduciary law, it fails as a theory of fiduciary law.
Part II defends our fiduciary theory of public international law against the Leib-Galoob critique. Their critique applies their theory of fiduciary relations to international law, but because that theory is unpersuasive as a theory of fiduciary law, it cannot serve as a benchmark for assessing whether various fields of public law—including public international law—are amenable to fiduciary theorizing. Having said that, and to give our critics the benefit of the doubt, we consider whether international law and its institutions are as insensitive to deliberation as Leib and Galoob claim. There are significant aspects of international legal order—international adjudication and global administrative law—with national analogues that Leib and Galoob endorse as fruitful sites for public fiduciary theorizing. We similarly suggest that other features of international law, such as its dominant model for review of human rights violations, are also highly deliberation-sensitive—sensitive, that is, to public justification rather than to the decision-maker’s personal motives for decision, which are irrelevant.
Part III challenges Leib and Galoob’s methodological approach to public fiduciary theory, which draws on abstract moral philosophy to deduce ethical norms that (they claim) operate as legal constraints on a fiduciary’s internal mental states and processes. We explain why we—like most other public fiduciary theorists—have rejected this methodology in favor of an interpretivist approach that takes extant legal norms, institutions, and practices seriously as the starting point for critical analysis.
University Microfilms order no. UMI00458176. Thesis (M.A.)--University of Manitoba, 1993. Include... more University Microfilms order no. UMI00458176. Thesis (M.A.)--University of Manitoba, 1993. Includes bibliographical references.
There is nothing in the text of either the 1867 or 1982 Constitution Acts that explicitly require... more There is nothing in the text of either the 1867 or 1982 Constitution Acts that explicitly requires Canadian federal and provincial legislatures to enact legislation using language that is clear and precise. There is in Canadian jurisprudence, however, an emerging void-for-...
Constitutions are conventionally perceived to have three dimensions. The first concerns a constit... more Constitutions are conventionally perceived to have three dimensions. The first concerns a constitution’s substantive elements. These elements typically include a division of powers specifying a federation or a unitary state, a separation of public powers between legislative, judicial and administrative branches, and an institutionalized form of rights protection. Underlying these substantive elements is usually some conception of the rule of law or legal order, which may or may not – depending on the account – circumscribe fully the exercise of sovereign power. Secondly, constitutions are ordinarily regarded as the supreme law that governs relations between the state and its citizens. And finally, constitutions of democracies are thought to supply democratic and self-contained standards of legitimacy, standards that emerge from ‘We the People’ and thereby express their people’s fundamental and enduring values. In short, this orthodox view of (liberal democratic) constitutions is that (i) their substantive content allocates public powers and protects rights within a municipal legal order, (ii) their structure supplies a paramount legal framework to state-citizen relations, and (iii) their legitimacy rests on their capacity to authorize public power in accordance with local democratic standards.
I argue that the orthodox view is incomplete along all three dimensions. In addition to the allocation of public powers and rights protection, of constitutional status too are the conditions of residence and membership in the relevant political community; i.e., the conditions under which an individual can become a permanent resident or citizen. It follows that the scope of a constitution must be wider than the governance of state-citizen relations. A constitution’s scope must include a cosmopolitan aspect capable of supplying a legal framework to relations between states and foreign nationals. And the legitimacy of a constitution’s cosmopolitan aspect, I argue, rests on the operation of supra-national legal standards and institutions (e.g., international human rights law) within a cognizable legal relationship that obtains between the state and foreign nationals. An important implication of this relationship is that if the state uses force or the threat of force against peaceful outsiders who seek to enter its territory or become members of its polity, it then owes them a weighty duty of justification. Once we have in view the structure and content of the cosmopolitan relationship between the state and non-citizens, we shall see that the same kind of relationship and a generalized duty of justification are necessarily part of the legitimacy of a constitution in the ordinary state-citizen case.
We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees f... more We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous people’s sovereignty within the trusteeship model. Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent (FPIC). The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that at the very least they are a move in the right direction, and that implicitly they represent international law's recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors.
III. THE NEW POPULAR SOVEREIGNTY: FIDUCIARY STATES IN INTERNATIONAL LAW ...................... 34... more III. THE NEW POPULAR SOVEREIGNTY: FIDUCIARY STATES IN INTERNATIONAL LAW ...................... 347 A. Fiduciary Relationships and the State as Fiduciary......................................... .............. 349 B. Kant's Model of Fiduciary Relations....................................................................... ...
Fiduciaries and Trust: Ethics, Politics, Economics and Law, Paul B. Miller and Matthew Harding, eds. (forthcoming CUP), 2019
Some judges and scholars hold that within legal limits and across legal frameworks, there is just... more Some judges and scholars hold that within legal limits and across legal frameworks, there is just a legal void, a domain in which law is absent. I challenge the legal void thesis, arguing that law operates within the spaces law creates. Law governs the interstitial spaces that exist within legal limits and across frameworks, I claim, through its possession and assertion of legitimate authority. Importantly, its spatially seamless assertion of legitimate authority relies on a relationship of mutual trust between law-giver and legal subject.
The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature and effects of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes suggests that public authority may be understood to have arisen from an original covenant to which all subjects consent and by which the sovereign comes to enjoy the subjects’ authorization. Yet once legal institutions are in place, Hobbes tends to use the language of trust to characterize the position of the sovereign and other public officials. And, Hobbes thinks the very possibility of being a subject rather than a captive slave depends on the sovereign trusting the subject with liberty, thus making the trust relationship between sovereign and subject mutual. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials.
Philosophical Foundations of the Law of Equity, 2019
I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is ... more I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is much more speculative. The first two related ideas are that Equity has the characteristic form of public law, and that Equity shares public law’s basic concern, which is to regulate power held by one party for the benefit of another. Equity and public law alike are structured by the presence of other-regarding power in the legal relations they govern. The third related idea is that the legal form of Equity and public law answers to a particular kind of justice that is neither corrective justice nor distributive justice, but what I call jurisdictional justice. The speculative idea I consider is that Equity is best regarded as a species of public law.
I refer to the conjunction of the first three ideas as the weak public law theory of Equity. This theory is consistent with Equity belonging on either side of the private law/public law divide. I refer to the conjunction of all four claims as the strong public law theory of Equity. On this account, Equity is a species of public law. My aim is to defend the weak public law theory, identify some of the obstacles that stand in the way of the strong theory, and then nonetheless offer some tentative arguments that aim to show some of the features and possible merits of the strong theory.
In Part II I distinguish Equity’s anti-opportunism law, which involves cases of rights sticklers and opportunists, and Equity’s jurisdictional law, which is mainly cases involving fiduciary relations, such as trusts or agency relations. Part III compares trust law and administrative law, and a series of doctrines they share. In Part IV I discuss other-regarding powers. These powers are a defining and structural feature of Equity. Their significance to Equity is the principal basis for thinking that Equity has the form of public law. In Part V I argue that Equity is structured by jurisdictional justice. This is the form of justice apposite to supervisory review of the exercise of other-regarding powers. Its structure is plainly evident in Equity’s jurisdictional law. In Part VI I argue that this mode of justice is also present in Equity’s anti-opportunism law. In Part VII I canvas some of the advantages of the weak and strong public law theories, and their explanatory power.
The idea that the state is a fiduciary to its people has a long pedigree — ultimately reaching ba... more The idea that the state is a fiduciary to its people has a long pedigree — ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This essay, which serves as an introduction to a new volume on “Fiduciary Government” (CUP 2018), contributes to the growing renaissance of public fiduciary theory. Drawing on the volume’s groundbreaking chapters, the essay explains how fiduciary principles yield new insights into a variety of important topics in legal and political theory. These topics include the proper roles of public officials and judges; the validity and operation of positive rights; and the concepts of political representation, legitimacy, and obligation. The essay also presents several important critiques of public fiduciary theory.
In their provocative essay, Interpersonal Human Rights, Dagan and Dorfman argue that when private... more In their provocative essay, Interpersonal Human Rights, Dagan and Dorfman argue that when private parties from different national jurisdictions interact, their interaction is properly subject to a distinctive regime of private law they call jus gentium privatum. In this comment, I draw attention to two dimensions of the Dagan/Dorfman project. The first is internal, and involves an examination of Dagan and Dorfman’s basic argument from privity in favor of the jus gentium privatum. I suggest there is tension between their use of a formal concept of privity, on the one hand, and their theory of private law, on the other. The second dimension I explore pertains to characterization, and interrogates Dagan and Dorfman’s description of the jus gentium privatum as a regime of interpersonal human rights. I ask after what Dagan and Dorfman mean here by “interpersonal,” since the human rights duty-bearer of international law — the state — is a person, too.
This symposium piece discusses the way the Supreme Court of Canada in its 2008 Dunsmuir decision ... more This symposium piece discusses the way the Supreme Court of Canada in its 2008 Dunsmuir decision returned to jurisdiction as a key analytic device with which to conduct judicial review of administrative action. The Court did so, however, without offering a method to distinguish jurisdictional errors of law from non-jurisdictional errors. Without such a method, judicial review is at risk of abandoning its commitment to deference and reverting to an interventionist approach on the back of purported jurisdictional errors.
This Article challenges the conventional wisdom that states are always free to choose whether to ... more This Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. We argue that contemporary international law requires multilateralism in at least five domains: (1) disputes involving rivalrous claims to territorial jurisdiction, (2) disputes involving conflicting legal entitlements, (3) the administration of common resources, (4) threats to international peace and security, and (5) grave breaches of international human rights and international criminal law.
International law’s commitment to mandatory multilateralism, we claim, is explained by its organizing principles of sovereign equality and joint stewardship. Sovereign equality provides for states’ mutual independence within an international legal order structured in part by a prohibition on unilateralism. Similarly, when international law assigns collective responsibility to states to regulate certain global public goods (e.g., the deep ocean floor, international peace and security), joint stewardship dictates that states must regulate those goods multilaterally rather than unilaterally.
Where mandatory multilateralism applies, it imposes a substantive requirement that states pursue equitable solutions to controversies by balancing their own legal interests with the interests of others. States also bear procedural obligations to investigate and consult with other interested states, negotiate in good faith, and if negotiations stall, submit to third-party dispute resolution. If states are unable to agree on a negotiated solution or a forum for arbitration, they must maintain a dialogue and refrain from taking steps that would prejudice negotiations.
The final section of the Article explains how mandatory multilateralism offers lessons with respect to three current controversies: the South China Sea dispute, the United States’ pending withdrawal from the 2015 Paris Agreement, and Bolivia’s efforts to compel Chile to negotiate over territorial access to the Pacific.
forthcoming in Bomhoff, Dyzenhaus, Poole (eds) The Double-Facing Constitution (CUP 2019)
I argue that the public law of a state that governs its interactions with outsiders –- the state’... more I argue that the public law of a state that governs its interactions with outsiders –- the state’s cosmopolitan law -- must have a certain outward orientation and representative character if it is to be law, properly so-called. Drawing on interpretative and normative work with Evan Criddle on international law, I deploy a criterion of legitimacy we develop in that work to make a conceptual claim about the nature of law. This criterion lays down that for a state’s action to be legitimate with respect to a given individual, it must be intelligible as action made on behalf of or in the name of the individual subject to it, even if the state’s action sets back the interests of the individual. The criterion is both normative and conceptual, and here I argue that it can help explain and inform the conceptual moral claim that, according to Raz, all legal systems necessarily make; i.e., the claim to possess legitimate authority. On this view, it is an existence condition of a legal system that it claims to possess legitimate authority.
To bring the criterion of legitimacy from my work with Criddle into contact with Raz’s conceptual claim, I look first to the legal effects of peremptory or jus cogens norms of international law, and in particular, the prohibition against slavery. I argue that no regime that maintains slave laws can possibly claim to assert legitimate authority over slaves, because no such regime could be understood to assert slave laws on behalf of them. Such laws manifestly violate both the criterion of legitimacy and Raz’s conceptual condition.
The next step is to show that if the state’s cosmopolitan law does not satisfy the criterion of legitimacy in relation to outsiders, then the state treats them as possessing a status akin to slaves. Such a state would interact with outsiders using mere coercive force rather than law. If this argument is sound, it will show that slavery is not a special case of a failure of law, and it will strengthen the argument in favour of turning to the representational criterion of legitimacy as the content of the law’s moral claim. When the law speaks it makes a moral claim because, to be law rather than mere coercive force, it necessarily claims to speak in a representative capacity for everyone subject to its authority, including peaceful outsiders who arrive at the border and wish to come in.
In recent years, scholars have deployed fiduciary concepts to explain or illuminate a dizzying ar... more In recent years, scholars have deployed fiduciary concepts to explain or illuminate a dizzying array of public law regimes and institutions. To name but a few, this array includes constitutional law, administrative law, common law constitutionalism, international law, international human rights law, the law of judging, the law governing legislators, the law governing indigenous peoples, the law of armed conflict, national security and emergencies law, and international refugee law. The sheer range of topics treated may give the impression that there are few, if any, new frontiers in public fiduciary law. I argue that quite the opposite is true: the frontiers of public fiduciary law are vast and open. They are so because public fiduciary theory, within its domain (the domain of public law), is an interpretive theory of everything. I suggest that the theory underlying public fiduciary law is a theory of everything with respect to public law because the theory illuminates the salient features of the representative structure of public fiduciary relations. The most general normative implication of this representative conceptual structure is that office holders are under an obligation to exercise their power in a manner that can be understood as in the name of or on behalf of the persons subject to it. With this theory in place, we can explain why the frontiers are wide open in every sphere of public law—national, international, cosmopolitan, and transnational—and why they are just as expansive with respect to public fiduciary law and its relation to democracy, future generations, alternative theoretical frameworks, and jurisprudential inquiry. Indeed, the new frontiers of public fiduciary law are not simply open and expansive. They are also inviting.
Critics of public fiduciary theory have argued that public officials and institutions cannot prop... more Critics of public fiduciary theory have argued that public officials and institutions cannot properly be considered “fiduciaries” because the duty of loyalty does not permit a fiduciary to serve two masters with conflicting interests. We argue that this critique of public fiduciary theory is overstated because it rests on a false distinction between private and public fiduciary relationships. Conflicts of duty that arise in public fiduciary relationships are not categorically different from those that arise in private fiduciary relationships.
In some cases, the fiduciary owes not only discrete “first-order” duties to the beneficiary, but also wider “second-order” duties to the broader public or to public purposes. First-order fiduciary duties are the familiar legal duties that a fiduciary owes to her beneficiary. Second-order fiduciary duties emanate from a separate fiduciary relationship between the fiduciary and public-regarding institutions that have been entrusted to the fiduciary’s administration. Second-order fiduciary duties therefore serve a different and more systemic purpose: they ensure that a fiduciary’s loyalty to her beneficiary does not compromise other institutions entrusted to her care that are designed to provide equal freedom under the rule of law.
Part I of our paper uses two examples of fiduciary relationships governed primarily by private law — lawyers and physicians — to illustrate how second-order fiduciary duties operate. While lawyers are required to act in the best interests of their clients (first-order), they also bear a variety of prescriptive and proscriptive duties as officers of the court to promote the just and orderly administration of justice (second-order). Physicians likewise bear both first-order duties to their patients and second-order duties to the broader public, including obligations to prevent serious threats that their patients pose to others. Part II explains how second-order fiduciary duties contribute to the deontic legal structure of public offices and institutions. In particular, clarifying how second-order duties operate in public law helps to explain what kinds of legal obligations public authorities bear to whom and why. Part III demonstrates that national authorities also bear second-order fiduciary duties under international law. As fiduciaries of humanity, states are legally obligated to govern cooperatively so as to protect human rights for the benefit of international society as a whole.
Over the past decade, a growing number of legal and political theorists have looked to ideas of t... more Over the past decade, a growing number of legal and political theorists have looked to ideas of trusteeship and fiduciary relations to explain foundational concepts associated with the rule of law, constitutional government, the role of judges and legislators, and the idea of public authority itself. Professor Evan Criddle and I have contributed to this literature by arguing that fiduciary principles can help explain administrative law and international law. This public fiduciary literature has attracted thoughtful and nuanced critiques. Some of the critiques reject the public fiduciary project outright, while others are of a more in-house variety, and take exception to some of the arguments I have defended, either solely or with Professor Criddle. In this chapter I reply to the thorough-going critiques of Timothy Endicott and Seth Davis, and the in-house criticism of Paul Miller.
Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically fro... more Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically from the moral and political conceptions of international human rights law (IHRL) that dominate the literature. Rather than grounding human rights on features of our shared humanity (the moral, orthodox conception) or on their role in global politics (the political conception), Macklem claims that the point and purpose of IHRL is to mitigate the adverse effects produced by the structure and operation of international law itself, and in particular, the adverse effects of its distribution of sovereignty to some entities – states – and not others.
In this review essay, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible, and then calls on IHRL to serve a remedial and legitimating function from within international law itself.
Macklem, however, subscribes to a positivist legal theory that is closer to Austin’s command theory than Hart or Raz’s positivism. As a consequence, Macklem’s theory struggles to account for the authority of IHRL. In the final section of the paper I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of or on behalf of whomever is subject to them.
For centuries, prominent jurists and political theorists have looked to private fiduciary relatio... more For centuries, prominent jurists and political theorists have looked to private fiduciary relationships such as trusteeship, agency, and guardianship to explain and justify the authority of public officials and public institutions. This tradition has attracted increasing interest over the past decade, as legal scholars have used fiduciary concepts to elucidate important features of public law, from the nature and design of constitutional government, to the legal obligations that attend public offices such as judge and legislator. We have contributed to this revival of public fiduciary theory by showing that fiduciary principles can explain and justify the structure and content of administrative law and international law.
In an essay published recently in the Yale Law Journal, Professors Ethan Leib and Stephen Galoob argue that public fiduciary theory applies to some domains of public law but not others because these other domains “are incompatible with the basic structure of fiduciary norms.” In defending this claim, Leib and Galoob draw on and develop a revisionist theory of fiduciary law that is grounded in ethical and deliberative norms traditionally associated with affective relationships such as friendship. Based on this theory, they contend that public fiduciary theory applies only to relationships in which one party (the fiduciary) bears robust deliberative obligations, including a freestanding motivational requirement to attribute “nonderivative significance” to the interests of another party (the beneficiary). Leib and Galoob believe that these alleged deliberative characteristics of fiduciary relationships categorically rule out our arguments for using public fiduciary theory to explain and justify existing international law and its institutions.
In this Reply, we explain why the Leib-Galoob critique of public fiduciary theory misses the mark. Part I shows that their critique is based on a theory of fiduciary relations that is in tension with well-established features of private fiduciary law. Because their theory of fiduciary relations cannot explain core aspects of fiduciary law, it fails as a theory of fiduciary law.
Part II defends our fiduciary theory of public international law against the Leib-Galoob critique. Their critique applies their theory of fiduciary relations to international law, but because that theory is unpersuasive as a theory of fiduciary law, it cannot serve as a benchmark for assessing whether various fields of public law—including public international law—are amenable to fiduciary theorizing. Having said that, and to give our critics the benefit of the doubt, we consider whether international law and its institutions are as insensitive to deliberation as Leib and Galoob claim. There are significant aspects of international legal order—international adjudication and global administrative law—with national analogues that Leib and Galoob endorse as fruitful sites for public fiduciary theorizing. We similarly suggest that other features of international law, such as its dominant model for review of human rights violations, are also highly deliberation-sensitive—sensitive, that is, to public justification rather than to the decision-maker’s personal motives for decision, which are irrelevant.
Part III challenges Leib and Galoob’s methodological approach to public fiduciary theory, which draws on abstract moral philosophy to deduce ethical norms that (they claim) operate as legal constraints on a fiduciary’s internal mental states and processes. We explain why we—like most other public fiduciary theorists—have rejected this methodology in favor of an interpretivist approach that takes extant legal norms, institutions, and practices seriously as the starting point for critical analysis.
University Microfilms order no. UMI00458176. Thesis (M.A.)--University of Manitoba, 1993. Include... more University Microfilms order no. UMI00458176. Thesis (M.A.)--University of Manitoba, 1993. Includes bibliographical references.
There is nothing in the text of either the 1867 or 1982 Constitution Acts that explicitly require... more There is nothing in the text of either the 1867 or 1982 Constitution Acts that explicitly requires Canadian federal and provincial legislatures to enact legislation using language that is clear and precise. There is in Canadian jurisprudence, however, an emerging void-for-...
Constitutions are conventionally perceived to have three dimensions. The first concerns a constit... more Constitutions are conventionally perceived to have three dimensions. The first concerns a constitution’s substantive elements. These elements typically include a division of powers specifying a federation or a unitary state, a separation of public powers between legislative, judicial and administrative branches, and an institutionalized form of rights protection. Underlying these substantive elements is usually some conception of the rule of law or legal order, which may or may not – depending on the account – circumscribe fully the exercise of sovereign power. Secondly, constitutions are ordinarily regarded as the supreme law that governs relations between the state and its citizens. And finally, constitutions of democracies are thought to supply democratic and self-contained standards of legitimacy, standards that emerge from ‘We the People’ and thereby express their people’s fundamental and enduring values. In short, this orthodox view of (liberal democratic) constitutions is that (i) their substantive content allocates public powers and protects rights within a municipal legal order, (ii) their structure supplies a paramount legal framework to state-citizen relations, and (iii) their legitimacy rests on their capacity to authorize public power in accordance with local democratic standards.
I argue that the orthodox view is incomplete along all three dimensions. In addition to the allocation of public powers and rights protection, of constitutional status too are the conditions of residence and membership in the relevant political community; i.e., the conditions under which an individual can become a permanent resident or citizen. It follows that the scope of a constitution must be wider than the governance of state-citizen relations. A constitution’s scope must include a cosmopolitan aspect capable of supplying a legal framework to relations between states and foreign nationals. And the legitimacy of a constitution’s cosmopolitan aspect, I argue, rests on the operation of supra-national legal standards and institutions (e.g., international human rights law) within a cognizable legal relationship that obtains between the state and foreign nationals. An important implication of this relationship is that if the state uses force or the threat of force against peaceful outsiders who seek to enter its territory or become members of its polity, it then owes them a weighty duty of justification. Once we have in view the structure and content of the cosmopolitan relationship between the state and non-citizens, we shall see that the same kind of relationship and a generalized duty of justification are necessarily part of the legitimacy of a constitution in the ordinary state-citizen case.
We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees f... more We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous people’s sovereignty within the trusteeship model. Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent (FPIC). The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that at the very least they are a move in the right direction, and that implicitly they represent international law's recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors.
This is Chapter 4 of Sovereignty's Promise, titled "Fiduciary Relationships and the Presumption o... more This is Chapter 4 of Sovereignty's Promise, titled "Fiduciary Relationships and the Presumption of Trust".
In the book, I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
In this chapter, I discuss the nature of sovereignty and develop a theory of fiduciary relations. I argue that the relationship between state and legal subject exhibits the features of fiduciary relations, and therefore is itself a particular form of fiduciary relationship. I also argue that, roughly speaking, trust is to fiduciary relations what consent is to contractual relations: like consent in contract, trust explains the presence and nature of various duties of fiduciary law.
This is Chapter 1 of Sovereignty's Promise, titled "Introduction: The State as Fiduciary and the ... more This is Chapter 1 of Sovereignty's Promise, titled "Introduction: The State as Fiduciary and the Rule of Law."
In this book, I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
Chapter 1 suggests that common law constitutionalists lack a convincing reply to those who claim that there are no legal duties in public law save those which can be anchored in statute. If the state is a fiduciary of its people, however, a forceful reply awaits: because the state is a fiduciary of its people, it stands in a legal relationship to them from which rights and duties of public law may be inferred, wholly independent of statute. This chapter fleshes out this idea, and the idea of a legal, relational, and Kantian conception of the rule of law that challenges libertarianism.
Abstract:
This is the front matter and Prologue of the monograph "Sovereignty's Promise: Th... more Abstract: This is the front matter and Prologue of the monograph "Sovereignty's Promise: The State as Fiduciary."
I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
The Prologue looks to Thomas Hobbes as an historical exemplar of the idea that legal order has a fiduciary constitution structured by legal principles.
The pdf here contains the front matter (including table of contents), Chapter 1, and Chapter 7 of... more The pdf here contains the front matter (including table of contents), Chapter 1, and Chapter 7 of Fiduciaries of Humanity: How International Law Constitutes Authority. We argue that under international law today, states serve as fiduciaries of humanity, and their authority to govern and represent their people is dependent on their satisfaction of numerous duties, the most general of which is to establish a regime of secure and equal freedom on behalf of the people subject to their power. International institutions also serve as fiduciaries of humanity and are subject to similar fiduciary obligations. The fiduciary theory reconciles state sovereignty and responsibility by explaining how a state’s obligations to its people are constitutive of its legal authority under international law. We elaborate and defend the fiduciary model while exploring its application to a variety of current topics and controversies, including human rights, emergencies, the treatment of detainees in counterterrorism operations, humanitarian intervention, and the protection of refugees fleeing persecution.
Chapter 1 introduces the book’s argument. The chapter begins by examining the classical model of sovereignty, which posits that states wield absolute authority within their respective jurisdictions. It then discusses a variety of features of contemporary international law that are in tension with the classical model, suggesting that states are now obligated under international law to use their sovereign powers to advance the interests of their people. The chapter explains how this relational conception of sovereignty is consistent with the idea that states serve as fiduciaries for humanity, and it outlines three philosophical accounts of states’ fiduciary obligations, drawing on the writings of Immanuel Kant, John Locke, and Joseph Raz. Lastly, the chapter summarizes the arguments developed in subsequent chapters of the book.
Chapter 7 discusses the fiduciary theory’s implications for the protection of refugees under international law. It argues that the fiduciary theory of sovereignty best explains the duty of non-refoulement as a peremptory norm of international law. A state’s obligation to provide refuge to foreign nationals fleeing persecution abroad flows from the intersection of the state’s position as a joint trustee of the earth’s surface on behalf of humanity, on the one hand, and its position as a local fiduciary that international law entrusts with sovereignty over the people within a certain territory, on the other. As a fiduciary of humanity, the state acquires a cosmopolitan duty to grant refuge when an individual fleeing irresoluble threats to her human rights appears at its border.
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The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature and effects of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes suggests that public authority may be understood to have arisen from an original covenant to which all subjects consent and by which the sovereign comes to enjoy the subjects’ authorization. Yet once legal institutions are in place, Hobbes tends to use the language of trust to characterize the position of the sovereign and other public officials. And, Hobbes thinks the very possibility of being a subject rather than a captive slave depends on the sovereign trusting the subject with liberty, thus making the trust relationship between sovereign and subject mutual. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials.
I refer to the conjunction of the first three ideas as the weak public law theory of Equity. This theory is consistent with Equity belonging on either side of the private law/public law divide. I refer to the conjunction of all four claims as the strong public law theory of Equity. On this account, Equity is a species of public law. My aim is to defend the weak public law theory, identify some of the obstacles that stand in the way of the strong theory, and then nonetheless offer some tentative arguments that aim to show some of the features and possible merits of the strong theory.
In Part II I distinguish Equity’s anti-opportunism law, which involves cases of rights sticklers and opportunists, and Equity’s jurisdictional law, which is mainly cases involving fiduciary relations, such as trusts or agency relations. Part III compares trust law and administrative law, and a series of doctrines they share. In Part IV I discuss other-regarding powers. These powers are a defining and structural feature of Equity. Their significance to Equity is the principal basis for thinking that Equity has the form of public law. In Part V I argue that Equity is structured by jurisdictional justice. This is the form of justice apposite to supervisory review of the exercise of other-regarding powers. Its structure is plainly evident in Equity’s jurisdictional law. In Part VI I argue that this mode of justice is also present in Equity’s anti-opportunism law. In Part VII I canvas some of the advantages of the weak and strong public law theories, and their explanatory power.
International law’s commitment to mandatory multilateralism, we claim, is explained by its organizing principles of sovereign equality and joint stewardship. Sovereign equality provides for states’ mutual independence within an international legal order structured in part by a prohibition on unilateralism. Similarly, when international law assigns collective responsibility to states to regulate certain global public goods (e.g., the deep ocean floor, international peace and security), joint stewardship dictates that states must regulate those goods multilaterally rather than unilaterally.
Where mandatory multilateralism applies, it imposes a substantive requirement that states pursue equitable solutions to controversies by balancing their own legal interests with the interests of others. States also bear procedural obligations to investigate and consult with other interested states, negotiate in good faith, and if negotiations stall, submit to third-party dispute resolution. If states are unable to agree on a negotiated solution or a forum for arbitration, they must maintain a dialogue and refrain from taking steps that would prejudice negotiations.
The final section of the Article explains how mandatory multilateralism offers lessons with respect to three current controversies: the South China Sea dispute, the United States’ pending withdrawal from the 2015 Paris Agreement, and Bolivia’s efforts to compel Chile to negotiate over territorial access to the Pacific.
To bring the criterion of legitimacy from my work with Criddle into contact with Raz’s conceptual claim, I look first to the legal effects of peremptory or jus cogens norms of international law, and in particular, the prohibition against slavery. I argue that no regime that maintains slave laws can possibly claim to assert legitimate authority over slaves, because no such regime could be understood to assert slave laws on behalf of them. Such laws manifestly violate both the criterion of legitimacy and Raz’s conceptual condition.
The next step is to show that if the state’s cosmopolitan law does not satisfy the criterion of legitimacy in relation to outsiders, then the state treats them as possessing a status akin to slaves. Such a state would interact with outsiders using mere coercive force rather than law. If this argument is sound, it will show that slavery is not a special case of a failure of law, and it will strengthen the argument in favour of turning to the representational criterion of legitimacy as the content of the law’s moral claim. When the law speaks it makes a moral claim because, to be law rather than mere coercive force, it necessarily claims to speak in a representative capacity for everyone subject to its authority, including peaceful outsiders who arrive at the border and wish to come in.
In some cases, the fiduciary owes not only discrete “first-order” duties to the beneficiary, but also wider “second-order” duties to the broader public or to public purposes. First-order fiduciary duties are the familiar legal duties that a fiduciary owes to her beneficiary. Second-order fiduciary duties emanate from a separate fiduciary relationship between the fiduciary and public-regarding institutions that have been entrusted to the fiduciary’s administration. Second-order fiduciary duties therefore serve a different and more systemic purpose: they ensure that a fiduciary’s loyalty to her beneficiary does not compromise other institutions entrusted to her care that are designed to provide equal freedom under the rule of law.
Part I of our paper uses two examples of fiduciary relationships governed primarily by private law — lawyers and physicians — to illustrate how second-order fiduciary duties operate. While lawyers are required to act in the best interests of their clients (first-order), they also bear a variety of prescriptive and proscriptive duties as officers of the court to promote the just and orderly administration of justice (second-order). Physicians likewise bear both first-order duties to their patients and second-order duties to the broader public, including obligations to prevent serious threats that their patients pose to others. Part II explains how second-order fiduciary duties contribute to the deontic legal structure of public offices and institutions. In particular, clarifying how second-order duties operate in public law helps to explain what kinds of legal obligations public authorities bear to whom and why. Part III demonstrates that national authorities also bear second-order fiduciary duties under international law. As fiduciaries of humanity, states are legally obligated to govern cooperatively so as to protect human rights for the benefit of international society as a whole.
In this review essay, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible, and then calls on IHRL to serve a remedial and legitimating function from within international law itself.
Macklem, however, subscribes to a positivist legal theory that is closer to Austin’s command theory than Hart or Raz’s positivism. As a consequence, Macklem’s theory struggles to account for the authority of IHRL. In the final section of the paper I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of or on behalf of whomever is subject to them.
In an essay published recently in the Yale Law Journal, Professors Ethan Leib and Stephen Galoob argue that public fiduciary theory applies to some domains of public law but not others because these other domains “are incompatible with the basic structure of fiduciary norms.” In defending this claim, Leib and Galoob draw on and develop a revisionist theory of fiduciary law that is grounded in ethical and deliberative norms traditionally associated with affective relationships such as friendship. Based on this theory, they contend that public fiduciary theory applies only to relationships in which one party (the fiduciary) bears robust deliberative obligations, including a freestanding motivational requirement to attribute “nonderivative significance” to the interests of another party (the beneficiary). Leib and Galoob believe that these alleged deliberative characteristics of fiduciary relationships categorically rule out our arguments for using public fiduciary theory to explain and justify existing international law and its institutions.
In this Reply, we explain why the Leib-Galoob critique of public fiduciary theory misses the mark. Part I shows that their critique is based on a theory of fiduciary relations that is in tension with well-established features of private fiduciary law. Because their theory of fiduciary relations cannot explain core aspects of fiduciary law, it fails as a theory of fiduciary law.
Part II defends our fiduciary theory of public international law against the Leib-Galoob critique. Their critique applies their theory of fiduciary relations to international law, but because that theory is unpersuasive as a theory of fiduciary law, it cannot serve as a benchmark for assessing whether various fields of public law—including public international law—are amenable to fiduciary theorizing. Having said that, and to give our critics the benefit of the doubt, we consider whether international law and its institutions are as insensitive to deliberation as Leib and Galoob claim. There are significant aspects of international legal order—international adjudication and global administrative law—with national analogues that Leib and Galoob endorse as fruitful sites for public fiduciary theorizing. We similarly suggest that other features of international law, such as its dominant model for review of human rights violations, are also highly deliberation-sensitive—sensitive, that is, to public justification rather than to the decision-maker’s personal motives for decision, which are irrelevant.
Part III challenges Leib and Galoob’s methodological approach to public fiduciary theory, which draws on abstract moral philosophy to deduce ethical norms that (they claim) operate as legal constraints on a fiduciary’s internal mental states and processes. We explain why we—like most other public fiduciary theorists—have rejected this methodology in favor of an interpretivist approach that takes extant legal norms, institutions, and practices seriously as the starting point for critical analysis.
I argue that the orthodox view is incomplete along all three dimensions. In addition to the allocation of public powers and rights protection, of constitutional status too are the conditions of residence and membership in the relevant political community; i.e., the conditions under which an individual can become a permanent resident or citizen. It follows that the scope of a constitution must be wider than the governance of state-citizen relations. A constitution’s scope must include a cosmopolitan aspect capable of supplying a legal framework to relations between states and foreign nationals. And the legitimacy of a constitution’s cosmopolitan aspect, I argue, rests on the operation of supra-national legal standards and institutions (e.g., international human rights law) within a cognizable legal relationship that obtains between the state and foreign nationals. An important implication of this relationship is that if the state uses force or the threat of force against peaceful outsiders who seek to enter its territory or become members of its polity, it then owes them a weighty duty of justification. Once we have in view the structure and content of the cosmopolitan relationship between the state and non-citizens, we shall see that the same kind of relationship and a generalized duty of justification are necessarily part of the legitimacy of a constitution in the ordinary state-citizen case.
The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature and effects of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes suggests that public authority may be understood to have arisen from an original covenant to which all subjects consent and by which the sovereign comes to enjoy the subjects’ authorization. Yet once legal institutions are in place, Hobbes tends to use the language of trust to characterize the position of the sovereign and other public officials. And, Hobbes thinks the very possibility of being a subject rather than a captive slave depends on the sovereign trusting the subject with liberty, thus making the trust relationship between sovereign and subject mutual. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials.
I refer to the conjunction of the first three ideas as the weak public law theory of Equity. This theory is consistent with Equity belonging on either side of the private law/public law divide. I refer to the conjunction of all four claims as the strong public law theory of Equity. On this account, Equity is a species of public law. My aim is to defend the weak public law theory, identify some of the obstacles that stand in the way of the strong theory, and then nonetheless offer some tentative arguments that aim to show some of the features and possible merits of the strong theory.
In Part II I distinguish Equity’s anti-opportunism law, which involves cases of rights sticklers and opportunists, and Equity’s jurisdictional law, which is mainly cases involving fiduciary relations, such as trusts or agency relations. Part III compares trust law and administrative law, and a series of doctrines they share. In Part IV I discuss other-regarding powers. These powers are a defining and structural feature of Equity. Their significance to Equity is the principal basis for thinking that Equity has the form of public law. In Part V I argue that Equity is structured by jurisdictional justice. This is the form of justice apposite to supervisory review of the exercise of other-regarding powers. Its structure is plainly evident in Equity’s jurisdictional law. In Part VI I argue that this mode of justice is also present in Equity’s anti-opportunism law. In Part VII I canvas some of the advantages of the weak and strong public law theories, and their explanatory power.
International law’s commitment to mandatory multilateralism, we claim, is explained by its organizing principles of sovereign equality and joint stewardship. Sovereign equality provides for states’ mutual independence within an international legal order structured in part by a prohibition on unilateralism. Similarly, when international law assigns collective responsibility to states to regulate certain global public goods (e.g., the deep ocean floor, international peace and security), joint stewardship dictates that states must regulate those goods multilaterally rather than unilaterally.
Where mandatory multilateralism applies, it imposes a substantive requirement that states pursue equitable solutions to controversies by balancing their own legal interests with the interests of others. States also bear procedural obligations to investigate and consult with other interested states, negotiate in good faith, and if negotiations stall, submit to third-party dispute resolution. If states are unable to agree on a negotiated solution or a forum for arbitration, they must maintain a dialogue and refrain from taking steps that would prejudice negotiations.
The final section of the Article explains how mandatory multilateralism offers lessons with respect to three current controversies: the South China Sea dispute, the United States’ pending withdrawal from the 2015 Paris Agreement, and Bolivia’s efforts to compel Chile to negotiate over territorial access to the Pacific.
To bring the criterion of legitimacy from my work with Criddle into contact with Raz’s conceptual claim, I look first to the legal effects of peremptory or jus cogens norms of international law, and in particular, the prohibition against slavery. I argue that no regime that maintains slave laws can possibly claim to assert legitimate authority over slaves, because no such regime could be understood to assert slave laws on behalf of them. Such laws manifestly violate both the criterion of legitimacy and Raz’s conceptual condition.
The next step is to show that if the state’s cosmopolitan law does not satisfy the criterion of legitimacy in relation to outsiders, then the state treats them as possessing a status akin to slaves. Such a state would interact with outsiders using mere coercive force rather than law. If this argument is sound, it will show that slavery is not a special case of a failure of law, and it will strengthen the argument in favour of turning to the representational criterion of legitimacy as the content of the law’s moral claim. When the law speaks it makes a moral claim because, to be law rather than mere coercive force, it necessarily claims to speak in a representative capacity for everyone subject to its authority, including peaceful outsiders who arrive at the border and wish to come in.
In some cases, the fiduciary owes not only discrete “first-order” duties to the beneficiary, but also wider “second-order” duties to the broader public or to public purposes. First-order fiduciary duties are the familiar legal duties that a fiduciary owes to her beneficiary. Second-order fiduciary duties emanate from a separate fiduciary relationship between the fiduciary and public-regarding institutions that have been entrusted to the fiduciary’s administration. Second-order fiduciary duties therefore serve a different and more systemic purpose: they ensure that a fiduciary’s loyalty to her beneficiary does not compromise other institutions entrusted to her care that are designed to provide equal freedom under the rule of law.
Part I of our paper uses two examples of fiduciary relationships governed primarily by private law — lawyers and physicians — to illustrate how second-order fiduciary duties operate. While lawyers are required to act in the best interests of their clients (first-order), they also bear a variety of prescriptive and proscriptive duties as officers of the court to promote the just and orderly administration of justice (second-order). Physicians likewise bear both first-order duties to their patients and second-order duties to the broader public, including obligations to prevent serious threats that their patients pose to others. Part II explains how second-order fiduciary duties contribute to the deontic legal structure of public offices and institutions. In particular, clarifying how second-order duties operate in public law helps to explain what kinds of legal obligations public authorities bear to whom and why. Part III demonstrates that national authorities also bear second-order fiduciary duties under international law. As fiduciaries of humanity, states are legally obligated to govern cooperatively so as to protect human rights for the benefit of international society as a whole.
In this review essay, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible, and then calls on IHRL to serve a remedial and legitimating function from within international law itself.
Macklem, however, subscribes to a positivist legal theory that is closer to Austin’s command theory than Hart or Raz’s positivism. As a consequence, Macklem’s theory struggles to account for the authority of IHRL. In the final section of the paper I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of or on behalf of whomever is subject to them.
In an essay published recently in the Yale Law Journal, Professors Ethan Leib and Stephen Galoob argue that public fiduciary theory applies to some domains of public law but not others because these other domains “are incompatible with the basic structure of fiduciary norms.” In defending this claim, Leib and Galoob draw on and develop a revisionist theory of fiduciary law that is grounded in ethical and deliberative norms traditionally associated with affective relationships such as friendship. Based on this theory, they contend that public fiduciary theory applies only to relationships in which one party (the fiduciary) bears robust deliberative obligations, including a freestanding motivational requirement to attribute “nonderivative significance” to the interests of another party (the beneficiary). Leib and Galoob believe that these alleged deliberative characteristics of fiduciary relationships categorically rule out our arguments for using public fiduciary theory to explain and justify existing international law and its institutions.
In this Reply, we explain why the Leib-Galoob critique of public fiduciary theory misses the mark. Part I shows that their critique is based on a theory of fiduciary relations that is in tension with well-established features of private fiduciary law. Because their theory of fiduciary relations cannot explain core aspects of fiduciary law, it fails as a theory of fiduciary law.
Part II defends our fiduciary theory of public international law against the Leib-Galoob critique. Their critique applies their theory of fiduciary relations to international law, but because that theory is unpersuasive as a theory of fiduciary law, it cannot serve as a benchmark for assessing whether various fields of public law—including public international law—are amenable to fiduciary theorizing. Having said that, and to give our critics the benefit of the doubt, we consider whether international law and its institutions are as insensitive to deliberation as Leib and Galoob claim. There are significant aspects of international legal order—international adjudication and global administrative law—with national analogues that Leib and Galoob endorse as fruitful sites for public fiduciary theorizing. We similarly suggest that other features of international law, such as its dominant model for review of human rights violations, are also highly deliberation-sensitive—sensitive, that is, to public justification rather than to the decision-maker’s personal motives for decision, which are irrelevant.
Part III challenges Leib and Galoob’s methodological approach to public fiduciary theory, which draws on abstract moral philosophy to deduce ethical norms that (they claim) operate as legal constraints on a fiduciary’s internal mental states and processes. We explain why we—like most other public fiduciary theorists—have rejected this methodology in favor of an interpretivist approach that takes extant legal norms, institutions, and practices seriously as the starting point for critical analysis.
I argue that the orthodox view is incomplete along all three dimensions. In addition to the allocation of public powers and rights protection, of constitutional status too are the conditions of residence and membership in the relevant political community; i.e., the conditions under which an individual can become a permanent resident or citizen. It follows that the scope of a constitution must be wider than the governance of state-citizen relations. A constitution’s scope must include a cosmopolitan aspect capable of supplying a legal framework to relations between states and foreign nationals. And the legitimacy of a constitution’s cosmopolitan aspect, I argue, rests on the operation of supra-national legal standards and institutions (e.g., international human rights law) within a cognizable legal relationship that obtains between the state and foreign nationals. An important implication of this relationship is that if the state uses force or the threat of force against peaceful outsiders who seek to enter its territory or become members of its polity, it then owes them a weighty duty of justification. Once we have in view the structure and content of the cosmopolitan relationship between the state and non-citizens, we shall see that the same kind of relationship and a generalized duty of justification are necessarily part of the legitimacy of a constitution in the ordinary state-citizen case.
In the book, I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
In this chapter, I discuss the nature of sovereignty and develop a theory of fiduciary relations. I argue that the relationship between state and legal subject exhibits the features of fiduciary relations, and therefore is itself a particular form of fiduciary relationship. I also argue that, roughly speaking, trust is to fiduciary relations what consent is to contractual relations: like consent in contract, trust explains the presence and nature of various duties of fiduciary law.
In this book, I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
Chapter 1 suggests that common law constitutionalists lack a convincing reply to those who claim that there are no legal duties in public law save those which can be anchored in statute. If the state is a fiduciary of its people, however, a forceful reply awaits: because the state is a fiduciary of its people, it stands in a legal relationship to them from which rights and duties of public law may be inferred, wholly independent of statute. This chapter fleshes out this idea, and the idea of a legal, relational, and Kantian conception of the rule of law that challenges libertarianism.
This is the front matter and Prologue of the monograph "Sovereignty's Promise: The State as Fiduciary."
I argue that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of morally and factually irresistible public powers.
The Prologue looks to Thomas Hobbes as an historical exemplar of the idea that legal order has a fiduciary constitution structured by legal principles.
Chapter 1 introduces the book’s argument. The chapter begins by examining the classical model of sovereignty, which posits that states wield absolute authority within their respective jurisdictions. It then discusses a variety of features of contemporary international law that are in tension with the classical model, suggesting that states are now obligated under international law to use their sovereign powers to advance the interests of their people. The chapter explains how this relational conception of sovereignty is consistent with the idea that states serve as fiduciaries for humanity, and it outlines three philosophical accounts of states’ fiduciary obligations, drawing on the writings of Immanuel Kant, John Locke, and Joseph Raz. Lastly, the chapter summarizes the arguments developed in subsequent chapters of the book.
Chapter 7 discusses the fiduciary theory’s implications for the protection of refugees under international law. It argues that the fiduciary theory of sovereignty best explains the duty of non-refoulement as a peremptory norm of international law. A state’s obligation to provide refuge to foreign nationals fleeing persecution abroad flows from the intersection of the state’s position as a joint trustee of the earth’s surface on behalf of humanity, on the one hand, and its position as a local fiduciary that international law entrusts with sovereignty over the people within a certain territory, on the other. As a fiduciary of humanity, the state acquires a cosmopolitan duty to grant refuge when an individual fleeing irresoluble threats to her human rights appears at its border.