Book Review: Sovereignty's Promise: The State as Fiduciary
| Author | Antonia Waltermann |
| Published date | 01 December 2013 |
| Date | 01 December 2013 |
| DOI | http://doi.org/10.1177/1023263X1302000410 |
| Subject Matter | Book Review |
20 MJ 4 (2013) 649
BOOK REVIEWS
Evan Fox-Decent, Sovereignty’s Promise: e State as Fiduciary, Oxford University
Press, Oxford 2011, xviii + 283 pp., hardback, £ 53.00, ISBN 978–0–19–969831–8.
Sovereignty’s Promise: e State as Fiduciary argues for a reconceptualization of the
relationship between a sovereign state and its subject s, in terms of a duciar y duty owed
by the state to the subjects. is results in a duty to obey the law on the side of the
subjects. Fox-Decent starts his book with a prologue advoc ating an unorthodox reading
of Hobbes’ Leviathan. According to that reading, Hobbes bases the constitutional
framework of the legal order on the laws of nature and the moral relationship of
reciprocal trust bet ween sovereign and the people.1 e introduction brie y lays out his
main argu ment, which is subsequently applied to the relationship between the C anadian
Crown and the First Nations2 in Canada in Part 1. Part 2 deals with the circumstances
under which a duciary duty arises for the state and t he duty to obey the law on the part
of the subjects. In Part 3, t he substantive content of the ducia ry duty and its relationship
with human rights a re eshed out.
e idea of reconceptualizing the relationship between state and individual as a
duciary one is compelling in that it allows for the imposition of duties such as fairness
and reasonableness on the administration – which is Fox-Decent’s main focus – even
in the absence of speci c statutory provisions to this e ect. roughout the book, Fox-
Decent convincingly shows that a duciary relationship between state and individuals
ts the politica l reality of current times. While the case law and relationships he o ers
as examples stem largely from Canada and other commonwealth jurisdictions, he holds
that his theory applies universally.3 His ai m is to ‘defend a common law constitutionalist
and republican account of the ru le of law’ (emphasis added).4 Yet, an elaboration of how
his theory ts into a civil law system which goes beyond the mere statement that ‘the
unde rlyi ng fac t of sov ereig nty, howe ver, is true i n al l stat es’ wou ld have been b ene cial to
further suppor t this claim of universal appl ication.5
1 E.Fox-Dec ent, Soverei gnty’s Promise: e State as Fiduciary (Oxford University Press, Oxford 2011),
p.21.
2 e First Nations are ab original peoples i n Canada.
3 E.Fox-Decent, Sove reignty’s Promise: e State as Fiduc iary, p.29.
4 Ibid., p.26.
5 Ibid., p.29.
To continue reading
Request your trial