THE WORLDS OF FIDUCIARY THEORY.

• Author: Megret, Frederic

Introduction

If there can be crimes against humanity in international law, then international law really ought to have a more positive and productive theory what humanity means, and what duties to it might entail. (1) Can states be reimagined not as the self-sufficient--if rational--egotists that they have long been understood to be, or merely as the contingent guardians of the fate of their people, but as, more generally, fiduciaries of humanity? And, beyond the nice-sounding title, what would it mean to operationalize such a theory for the development of international law? Providing for such a theory is the ambition of Professors Criddle and Fox-Decent in a book that has become an influential restatement and refinement of a tradition of political theory, jurisprudence and international law that has sought to portray sovereignty as deriving from some prior international mandate. Contrast this with how, for some, the primacy of international law over sovereignty is merely conceived as an ontological condition of international law's existence: Criddle and Fox-Decent's work endow it with something more, that is a true moral grounding. Their account places international law before sovereignty. It does so by making sense of sovereignty as a bundle of duties as opposed to merely a putative jurisdiction or a simple set of prerogatives. In so doing, the book, Fiduciaries of Humanity succeeds the rare feat of being both a theory of international law and a theory of sovereignty. (2)

This theory is nothing if not ambitious, tantalizing and every bit worth this symposium dedicated to some of its facets. Where normative theorizing about international law has tended towards the "thin" end of justice, (3) Fiduciaries of Humanity is somewhat more ambitious, and certainly quite comprehensive. In fact, so broad is the book's span that several contributions to this symposium discuss only one element of the overall theory. Yet the book is also specific in some ways: Criddle and Fox-Decent's endeavour is a unique attempt to weave together private law insights with constitutional and, increasingly, international ones. What sort of theory is thereby produced? Is it a theory of the law or a theory of justice? What are some of the limits to what it can be applied to? How well does it fare in areas of the law that exist apparently far from where fiduciary concepts originally sprung? Seth Davis in his contribution underlines the originality of the work of Criddle and Fox-Decent. In a context where we have a great many contradictory intuitions about the ends of political life, both domestically and internationally, and dramatically few overarching narratives, Criddle and Fox-Decent strikes a meaningful chord.

And, indeed, it may be that, as the world becomes more "private" private law tools may, under certain conditions, provide some unique insights. As Davis cautions, however, these tools are only as good as what they are applied to and deployed for. The element of adequate "fit" of such legal concepts within the complex framework of public law questions cannot be assumed. The question which emerges, then, is what particular mindset does thinking about international law through the lens of one particular private law mechanism reveal? For example, is it a modest contribution or a hegemonic move? Or, to frame it differently, is it new or is it merely a reformulation of the canon? Who does such a perspective empower or disempower? As the papers in this symposium reveal, there remain questions as to the actual scope and ambition of the project and whether fiduciary theory can sustain the claims that are made on its behalf about international law. In this preface to the symposium issue, I seek to frame Criddle and Fox-Decent's contribution within broader trends in international law, emphasizing how its various articles, including Criddle and Fox-Decent's own epilogue piece, help us push the boundaries of what it might mean to think about international law in terms of fiduciary duties.

1. The Basic Gambit

   There is no doubt that Criddle and Fox-Decent's gamble is a bold one, in at least three respects. First, reduced to its simplest formulation, it is nothing less than the claim that the fiduciary theory better explains or at least provides a better theoretical account of international law than those provided to date by international lawyers . This is not to say that international lawyers have not relied in the past on some sort of fiduciary theorizing--the theory would not be compelling if they had not at all--but that Criddle and Fox-Decent propose to do so more specifically, systematically and consistently than has been done by the profession and scholarship. Theirs is a project to foreground what had arguably been always lurking in the background. Whether this works is for readers to decide, but it will require them to accept the basic intuition that the state and sovereignty are more like fiduciary relationships than anything else, in a context where there is no shortage of contenders. This thought inevitably opens the book up to all kinds of questioning about whether the proposed theory is making a descriptive or aspirational claim. In effect, it seems it is making both--the normative case being made more plausible by its grounding in reality, and the descriptive one by the fact that jurisprudential theory can, in fact, give an account of how the normative system actually functions.

   Second, their theory is quite comprehensive. It is both a theory of sovereignty and a theory of international law. It is important in this respect to emphasize that the claim is a triple claim: one more conventional, one less so and the other quite radical. The more conventional claim is that states act as fiduciaries for their own populations, something that is in and of itself obviously consonant with much liberal or republican theory. The relatively less conventional one is that they are fiduciaries of their people as a result of international law. The radical one is that states have fiduciary duties towards humanity at large. This is potentially explosive, in that it operates at the intersection of fraught debates between communitarian and cosmopolitan theorists on the ultimate beneficiaries of duties (fiduciary or otherwise, in fact). This is not fiduciary lite, but a sort of comprehensive, overarching theory of not only what it means to be a fiduciary but how having fiduciary duties constitutes one as a lawful and legitimate subject in international law.

   Third, the brilliance of their theory is that it profoundly subverts the order within which we construe the power-duty dyad (obviously the authors are in good company in doing so, but they also do it in a very systematic and elegant way). Where many international lawyers and scholars in a realist mindset are prone to first take sovereignty as fact--that is to say that sovereignty exists and is sovereignty as a result of some independent, typically factual, variable--and then tackle the problem of how to constrain sovereigns, Criddle and Fox-Decent argue that it is the duty to behave in a certain way that preexists the fact and legitimacy of sovereignty. And where international lawyers typically try to mold a reality that is seen as external to the law, Criddle and Fox-Decent provocatively argue that the reality is and ought itself to be seen as constituted by the law in the first place. There is no raw "power" to be civihzed by the law, only a power that is one only because it is created by the law. Moreover, their theory is not, in line with the conception put forward by the Kelsenian positivists, merely a logical "pure" idea of the state--one where the state can only exist as part of a pyramid of norms, and where international law logically comes before the state, etc.--but rather part of a normative commitment to the ends of political association.

   Here, I want to first point out some of the inherent plausibility of Criddle and Fox-Decent's theory and later, in the process of introducing the papers to this symposium, suggest ways in which their approach might find its limits. When considering the plausibility dimension, it is worth noting that fiduciary theories, belonging as they do to the very core of the development of the law writ large, have probably long undergirded international legal developments whose own intellectual debts to private law are often neglected. Criddle and Fox-Decent's work does not shine by its historical depth on this issue--that is a choice, to which I return later--but readers do find in much early and classical international legal work echoes of fiduciary concepts. For example, as Seth Davis reminds us, Hersch Lauterpacht, one of contemporary international law's foundational articulators, made much of international law's private law origins more generally. Going back in time, of course, we find a legal corpus in which the natural and the positive aspects, the public and the private, and the domestic and the international were all held up as much less irreducible.

   Criddle and Fox-Decent's call to retire the old conception of sovereignty as exclusive jurisdiction is, in fact, as old as sovereignty itself. In international law at least, there has arguably never been a call to sovereignty that was not simultaneously a call to restrain it in some meaningful way. Fiduciary theories, then, are not a late discovery, they are a rediscovery, as Criddle and Fox-Decent clarify, of something that had always been there, only to be temporarily forgotten or neglected as a result of intellectual fads. The idea that states should serve their people has long been one of the central tenets of human rights. The search for criteria of legitimate statehood has always haunted international law. Of course, for a realist and positivist theory of international law, sovereignty can be reduced to whether states tick the bare boxes of Montevideo sovereignty: territory, population...