Evan Fox-Decent

Rethinking the Process/Substance Distinction: Baker V. Canada

The authors argue that in Baker v. Canada, the Supreme Court of Canada set out a unified theory of judicial review which seeks to rest review on substantive ideals related to fundamental values such as human rights and the best interests of children. The Courts reliance on substantive criteria to guide review places stress on the traditional process/substance distinction under which reviewing courts would generally review procedural matters with some intensity, but would resist reviewing the substance or merits of a decision with the same intensity. The authors argue that the newfound stress on the process/substance distinction is welcome, and to some extent can be mitigated, because the reasons underlying review of procedure equally justify review of cases in which human rights and other fundamental values are at stake.

The Fiduciary Constitution of Human Rights

The authors argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or state-like actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

Sovereignty's promise : the state as fiduciary

Prologue: Hobbes and Legal Order 1. Introduction: The State as Fiduciary and the Rule of Law 2. Seeking Sovereignty 3. Some Objections 4. Fiduciary Relationships and the Presumption of Trust 5. The Duty to Obey the Law 6. Judicial Ambivalence to Public Fiduciary Duties 7. Procedural Fairness - A Pandoras Box of Legality 8. Administrative Law as Solicitude - Reasonable Decision-Making 9. The Rule of Law and Human Rights

Sovereignty as Trusteeship and Indigenous Peoples

Abstract We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous peoples’ sovereignty within the trusteeship model. Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent (FPIC). The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that they are a move in the right direction, and that implicitly they represent international law’s recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors.

Challenges to Public Fiduciary Theory: An Assessment

Over the past decade, a growing number of legal and political theorists have looked to ideas of trusteeship and fiduciary relations to explain foundational concepts associated with the rule of law, constitutional government, the role of judges and legislators, and the idea of public authority itself. Professor Evan Criddle and I have contributed to this literature by arguing that fiduciary principles can help explain administrative law and international law. This public fiduciary literature has attracted thoughtful and nuanced critiques. Some of the critiques reject the public fiduciary project outright, while others are of a more in-house variety, and take exception to some of the arguments I have defended, either solely or with Professor Criddle. In this chapter I reply to the thorough-going critiques of Timothy Endicott and Seth Davis, and the in-house criticism of Paul Miller.

Why Self-ownership is Prescriptively Impotent

The self-ownserhip thesis claims that people are the rightful owners of themselves, and that as a consequence that are entitled to do as they please, and appropriate what they will, just so long as they do not harm others. I argue that this no-harm proviso is problematic in that our best conception of harm is not that A harms B if, and only if, A makes B worse off, but rather that A harms B if, and only if, As action makes B worse off than B ought to be under the lights of our best political and moral theory. A consequence of this analysis of harm is that the self-ownership thesis turns out to be too crude to serve as a foundational principle of any political theory concerned with the distribution of scarce resources.