The Fiduciary Nature of State Legal Authority

Abstract

The fundamental interaction that triggers a obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something deeply fiduciary about the interaction between a state and its subjects. The nature of this relationship provides the justification for the state's legal authority to announce and enforce law, and explains the state's obligation to act in the interests of its subjects by ruling in accordance with the rule of law. Whereas consent theories of the state founder because so many people do not in fact consent to state authority, the theory flourishes precisely because law governs nonconsensual relations, including the state-subject relationship. With this underlying constitutional relationship in place, consent can operate through democratic channels to regulate the content of ordinary legislation.