Fiduciary Law

Abstract

This chapter assesses fiduciary law within the framework of private law theory. Fiduciary law and private law theory seem made for one another. Fiduciary law is centrally focused on the morally attractive end of maintaining relationships of trust and confidence among individuals. But it does so by bracketing highly abstract normative theory in favor of well-developed legal constructs such as duties of loyalty and care. It is comfortable with pluralism, complexity, and context-specificity. Moreover, it represents a rational structure that is not wholly dependent on external criteria yet does not aspire to strict independence from empirical considerations and normative values. Fiduciary law nevertheless poses some challenges for private law theory. As an evolving field, it may grow in unanticipated directions and risk the loss of its former coherence. The possibility of this loss of a coherent organizing structure has motivated considerable recent work in the theory of fiduciary law, and also in legal theory more generally, as scholars seek to understand how normative pluralism can coexist with stable, rational legal doctrine.