Fiduciary Relationships and the Presumption of Trust

Abstract

Chapter IV develops a distinction introduced in Chapter II between legal and political authority. Legal authority is the authority to make, interpret, administer and enforce law. This authority to establish legal order (as opposed to some other kind of order) arises from the state-subject fiduciary relationship. Political authority presupposes legal authority, but has other elements as well, such as the authority to determine the content of ordinary law through legislation. Political authority also encompasses issues of political representation. States are more or less democratic depending on how these issues are resolved. I also set out the necessary and sufficient conditions that give rise to fiduciary relations, and explain how the state-subject relationship satisfies them. I conclude that legal authority rests on the state-subject fiduciary relationship and a presumption that the state must exercise power on the basis of public trust, whereas democratic political authority rests on consent.