The state as a fiduciary?

Hobbes’s insight in ‘Leviathan’ (1651), to the collective action problem in the state of nature, was to empower some entity, i.e. the sovereign state, to make decisions for the group. However, by ‘[e]mpowering the state to override individual autonomy – which inevitably entails delegating powers of discretion to elites to carry out the task of governing – leaves the people subject to that power and discretion vulnerable to its abuse. … [E.G. through nepotism in awarding public contracts].

Conceiving of state authority in fiduciary terms has a long historical pedigree, dating back at least to Plato, Cicero, and Locke. …

Evan Fox-Decent [in his book ‘Sovereignty’s promise: The State as fiduciary’ (2011)] offers the most encompassing account of the state as fiduciary. He argues that the state, as a sovereign entity, is a fiduciary for “each person subject to its power and authority”. He derives this fiduciary relationship not from any contractual delegation of authority, but rather from Kant’s example of the obligations that a parent owes to a child. Just as children are subject to their parents’ discretionary decisions and incapable of either looking out for themselves or consenting to such an arrangement, the people are subject to the state’s administrative power and incapable of exercising state power on their own. According to Fox-Decent, the state’s fiduciary obligation to the people thus rests on trust, not consent. To fulfil that trust, the state must exercise its powers over it subjects for their benefit, not arbitrarily or for the aggrandisement of the ruling class. It must, in short, create a legal order that is governed by the rule of law and treat subjects fairly and reasonably. And those subjects owe a corresponding duty to obey the commands of the state that fulfils its fiduciary obligations. … Fox-Decent and Evan Criddle [in their book ‘Fiduciaries of Humanity: How International law Constitutes Authority’] have argued, that states may even have duties to other people who are not its subjects, including, for example, indigenous peoples within its borders who have not surrendered their own sovereignty, the subjects of other states, and future generations.’ [Extract from the Fiduciary Law Handbook, Chapter 17 ‘Fiduciary principles and the state’ by Theodore Rave].

Therefore,these duties could extend to protecting the environment, e.g. the Amazon Rainforest.

Do these duties need to be placed upon a statutory footing?

The relationship between the ancient idea of ‘Fiduciary Government’ and the existence of fiduciary duties owed by states in relation to cultural heritage, based upon a jus cogens theory, is a subject I am researching for my new book the ‘Fiduciary Theory of Art and Cultural Heritage’, see the ‘Art & Cultural Heritage Disputes’ page at www.ihtbar.com.