Seth Davis (University of California, Berkeley School of Law) has posted Pluralism and the Public Trust (Fiduciary Government (Evan J. Criddle et al., eds.) (Cambridge Univ. Press 2018)) on SSRN. Here is the abstract:
Law played a central role in colonization, but what did colonialism bequeath to law? There are many answers to this question, of course. This chapter focuses upon the fiduciary legacy of the law of colonial rule and asks what lessons we can learn about the fiduciary conception of government from its historical association with colonialism.
The fiduciary theory of government holds that government officials are (or, at least, are like) fiduciaries who administer a public trust on behalf of those subject to their authority. Much like the revival of republicanism in legal and political theory, public fiduciary theory is an attractive alternative to a market-oriented conception of the collective exercise of power. In place of a thin vision of public law’s capacity to constrain self-interest, public fiduciary theory promises a rule of law that holds public officials to other-directed duties of loyalty and care. In place of raw power, in other words, we would have a public trust.
Yet the fiduciary conception of government historically is associated with the exercise of colonial power. European governments and the United States asserted – and, in some cases, continue to assert – a fiduciary authority to justify colonial rule over other peoples.
My thesis is that the fiduciary conception, which can support the rule of law in even the most corrosive settings of public power, may legitimate political elites’ usurpation of the power to define the law, the right, and the good. To usurp is to displace another’s activity and to impose upon them one’s own. Colonialism involves usurpation where a settler elite claims a paramount power to replace Indigenous legal and political institutions with those of the colonial state. Usurpation is a wrongful form of political association when it denies subjects a legitimate claim to collective autonomy. A satisfying solution to the problem of usurpation, I argue, cannot be found in public fiduciary theory as it’s currently constituted.