Fiduciary Principles and the State

This chapter examines the fiduciary nature of state authority. It begins with a historical background on how state authority has been conceived in fiduciary terms as far back as Plato, Cicero and Locke. It then surveys modern conceptions of the sovereign state as a fiduciary for the people subject to its power and explores applications of fiduciary political theory to. state agencies and public officials. A fiduciary view of state authority need not equate to a grand unified field theory of political legitimacy. But drawing on lessons from fiduciary law’s approach to similarly structured governance problems in the private realm can shed new light on perennial problems of public law. The chapter considers how fiduciary principles have been applied to the state across a variety of contexts, including the Indian trust doctrine, the public trust doctrine in natural resources law, administrative law, and constitutional law. Finally, it discusses various conceptions of the fiduciary state’s duties of loyalty and care to its subjects, along with remedies available when those duties are breached.