Trust and fiduciary power

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.