Locke and The Origins of Fiduciary Governance

• In Event: Bodies and the Body Politic in Modern Political Thought

Abstract

A recent turn in legal theory has focused on the potential power of the fiduciary obligation to constrain the power of government. These ‘fiduciary political theorists’ argue that the fiduciary obligation, the obligation to act in the best interest of another, could work as a new model for legitimating the use of public authority and subject the use of public power to deliberative and consciences checks. When describing the history of this theory of government, most fiduciary political theorists acknowledge the role of Locke’s Two Treatise of Government in creating a fiduciary or trust model of government. However, Locke is usually cited in passing and there is little sustained attention on the details of his trust model of government or its relation to the contemporary theory building of the fiduciary political theorists. This paper accordingly promises a resurrection of the public trust model of government from within Locke’s thought. By paying closer attention to the specifics of Locke’s argument, we can extract a powerful model that balances the people’s power with the power of the government. By foregrounding the importance of the judgement and agency of the people in Locke’s account, this paper will provide fiduciary political theory with a new grounding. Current theory focuses too heavily on the state’s ability to check its own power and ignores the power that the people have to act as a check on their own government. A model of public trust governance that is attentive both to the power of the people and the power of internal governmental checks can be stitched together from the account that Locke provides.

Author

• Madalyn Hay, University of Toronto