Thursday, April 26, 2012

Fox-Decent: state as fiduciary

Evan Fox-Decent has been working on the idea of state-as-fiduciary for some time and I am pleased to see he has a new book out on the subject, entitled Sovereignty's Promise: The State as Fiduciary.  From the description:
    ...Fox-Decent argues that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state's authority to announce and enforce law. The fiduciary state is conceived of as a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state's fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state's possession of irresistible public powers. ....
If the book is just too much, you can read some of his papers on the subject, here and here for example.  This is an interesting perspective for those of us who think about the nature of sovereignty in the context of tax.  As I've mentioned here before, I struggle with what sovereignty means for taxation because I think it is one of those concepts that can be used to mean vastly different things depending on the desired goals.  Tax sovereignty, for example, has been used as a shield against multilateral treaties (because multilateralism might erode tax sovereignty), and at the same time a sword against certain nations (because they are exercising their sovereignty in an "unfair" way).  Thinking about the state as a fiduciary in this context, will we come to a different way to think about the exercise of the power to tax?   On the to-read list.

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