Abstract
This paper analyzes an aspect of trust relatively less explored by political philosophers, namely, the legal conception of trust. As I explain in Sect. 1, the legal conception of trust refers to trust as a moral and/or legal obligation of power. It is distinct from trust understood as confidence and from trustworthiness; nonetheless, I offer that trust as confidence is constitutive of trust as obligation. In Sect. 2, I briefly recount the origin of the trust and the development of the legal metaphor of trust in 17th century England, most notably in the work of John Locke. In Sect. 3, I turn to examining the contemporary fiduciary political theory proposed by Evan Fox-Decent, which is a literalist transposition of private fiduciary principle to the public sphere. One notable aspect of Fox-Decent’s theory is its attempt to justify the State’s legitimacy on the basis of its fiduciary relationship with its subjects. Fox-Decent thus offers an alternative to all consent-based theories, primarily contesting A. John Simmons’s voluntarism. As I explain in Sect. 4, fiduciary political theory is based on a “presumption of trust” and appeals to Annette Baier’s conception of an “unconscious, automatic” trust in order to explain the fiduciary relation between the individual and the irresistible administrative power of the State. In Sect. 5, I present the main objections to fiduciary political theory and explore the compatibility of the fiduciary principle with Simmons’s voluntarism.
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Notes
- 1.
Braithwaite’s statement finds further confirmation in the work of J. S. Maloy. As the latter summarizes (2009), the recent literature on trust produced by political philosophers and scientists, when considering the specifically political dimensions or aspects of trust, has analyzed and examined the subject by mainly assuming a “psychic approach.” Authors mostly see trust as a “psychic quantity,” which becomes “political” when it regards institutions and politicians, or the relationship between politicians and ordinary citizens, or between the citizens themselves. The “psychic approach” also implies an “economic” understanding of trust, in the sense that it is seen “as a kind of resource amenable to increase, conservation, depletion, etc.” (Maloy 2009, 493). This approach then splits, according to Maloy, into two major diverging orientations: on the one hand, the “civic” or “social capital” line, epitomized by Robert D. Putnam; and on the other, the “legalistic” or “game-theoretical” line, epitomized by Russell Hardin. While the civic orientation tends to focus on the relationships between citizens and the social practices of mutual and/or generalized confidence that support healthy democratic life, the legalistic orientation, conversely, tends to focus on the relationship between citizens and institutions, and considers the ways in which institutions must be conceived in order to be supportive of general trust. In other words, according to the legalistic orientation, institutions represent the conditions “under which it is rationally justifiable to trust” (Maloy 2009, 493).
- 2.
Previously it was assumed that “offices granted by the king were held ‘on trust and confidence’” (as stated in a Year Book of 1471, quoted in Seipp 2011, 1025, my emphasis).
- 3.
So, the community is the wielder of actual sovereign power, as noted in Knoll (2010, 236). It is also for a similar reason that Jean Hampton proposes that what Locke had in mind was not a trustee/beneficiary relationship, but a principal/agent one (see Hampton 1986, 248n18). The latter is a fiduciary relationship based on a contract in which the principal controls the agent (see also Pettit 2012, 32).
- 4.
- 5.
On this point see Foa Dienstag (1996).
- 6.
“Sovereign power…upon the principle of utility, can never be other than fiduciary” (Bentham 2005, 263). “In whatever way we define or understand the idea of a right, no person can have a right…to power over others: every such power, which he is allowed to possess, is morally, in the fullest force of the term, a trust” (Mill 1998, 353–54).
- 7.
- 8.
A comparison should be made with Philip Pettit’s contestatory republicanism (Pettit 1997). While Fox-Decent’s idea of the subject’s legal inability to exercise or control the administrative power of the State seems to be at odds with Pettit’s approach, the same cannot be said about Fox-Decent’s common law constitutionalism as a republican guarantee against domination (cfr. Fox-Decent 2011, 26).
- 9.
Voluntarism is a political theory that grounds political obligation on express consent alone; see Simmons (1981).
- 10.
Simmons distinguishes between justification and legitimacy of the State in his classic article Justification and Legitimacy. According to Simmons, “we can justify the state by showing that some realizable type of state is on balance morally permissible (or ideal) and that it is rationally preferable to all feasible nonstate alternatives” (Simmons 2001, 125–26), while “[p]olitical power is morally legitimate, and those subject to it are morally obligated to obey, only where the subjects have freely consented to the exercise of such a power and only where that power continues to be exercised within the terms of the consent given” (Simmons 2001, 129). Simmons specifies that “State legitimacy…includes an exclusive power over subjects to impose duties and enforce them coercively, which correlates with obligations on others to refrain from these tasks. It also includes a right, held against subjects, to be obeyed…This latter right is the logical correlate of subjects’ political obligations” (Simmons 2001, 130n20). It must be noted that in a previous article, Fox-Decent specified that his “claim regarding the legitimacy implied by state legal authority is much narrower in scope and ambition than the all-things-considered legitimacy that Simmons addresses…My project concerns solely the legitimatizing effects of legality…a state’s compliance with the fiduciary view of the rule of law gives the subject a reason to obey the law” (Fox-Decent 2005, 290, emphasis in the original). In his later magnum opus, Fox-Decent seems to offer a more radical view.
- 11.
“The clearest case of agency of necessity involves shipmasters who find themselves in an emergency situation that places the cargo they are carrying in imminent peril…Shipmasters normally have no contract with the owners of the cargo. Nonetheless, courts have held that the shipmaster may act without prior authority as an agent of the cargo’s owner in order to protect the goods or their value” (Fox-Decent 2011, 132, my emphasis).
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Menon, M. (2020). Trust and Fiduciary Power. In: Fabris, A. (eds) Trust. Trust 2020. Studies in Applied Philosophy, Epistemology and Rational Ethics, vol 54. Springer, Cham. https://doi.org/10.1007/978-3-030-44018-3_12
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