PHILOSOPHICAL FOUNDATIONS OF FIDUCIARY LAW. Eds Andrew S Gold and Paul B Miller Oxford: Oxford University Press (www.oup.com), 2014. xii + 436 pp. ISBN: 9780198701729. £75.00
| Author | Daniel J Carr |
| DOI | 10.3366/elr.2015.0286 |
| Pages | 291-293 |
| Date | 01 May 2015 |
| Published date | 01 May 2015 |
This edited collection brings together a number of leading scholars, one might say an all-star cast, to consider an area of law which, in recent years, has become increasingly topical. In particular, the editors are well justified in noting that the level of attention which has been lavished on fiduciary law means that it is now best considered to be a distinctive body of law, which crosses traditional taxonomic boundaries such as the divide between public and private law. The editors are also admirably ambitious for the book, believing that it will “set the agenda for philosophical study of fiduciary law for generations to come” (2). Only the passage of time can vindicate that claim; but the coverage and quality of the collection go a long way to justifying such an expectation. A collection with such an objective is, therefore, timeous given the increased interest in the subject. Yet, it is also well timed because the philosophical underpinnings or foundations of the law necessarily inform and explain the doctrinal understanding of this area of law,
The text is thematically arranged in the following parts: (I) fiduciary relationships; (II) fiduciary duties; (III) economic theory: constructive and critical perspectives; (IV) fiduciary principles in context: private law; and (V) fiduciary principles in context: public law. Here I will concentrate mainly on parts I & II, and even then not all the papers, for reasons of space, the other parts being more specialist, but no less interesting.
In Part I, Edelman's chapter considers offices and the extent to which a person's fiduciary status is derived from an office, concluding, consistently with his previous writings based on a consensual or contractarian approach, that an almost model conceptualisation of a particular office in the abstract can assist with fleshing out the duties a fiduciary will ordinarily be deemed to have undertaken (expressly or implicitly) by taking up a particular position which is a type of that office. Nevertheless, it remains necessary for some form of undertaking to occur to render an obligation one that is to be performed as a fiduciary: the archetype of the office assists with
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