THE FIDUCIARY SOCIAL CONTRACT

IF 0.3 4区 哲学 Q4 ETHICS Social Philosophy & Policy Pub Date : 2021-01-01 DOI:10.1017/S0265052521000212
Gary Lawson
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Abstract

Abstract The United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it was validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts.
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信托社会契约
美国宪法在形式上和事实上都是一种信义文书,根据该文件行事的政府官员必须遵守所有此类文件所依据的信义义务的背景规则。18世纪最基本的信义规则之一是反对自由裁量权次委托的推定规则。这条规则只是假定的;有一些公认的例外情况,即在代理文书明确授权的情况下,在惯例或传统认可的情况下,以及在为实现代理人所授权的目的所必需的情况下,允许分委托。第三个例外在多大程度上可以证明国会将立法权广泛地下放给行政机构是合理的?部分答案超出了本文的目的,它取决于确定宪法赋予国会的工作的性质,这意味着确定国会授权的范围。答案的另一部分取决于专业知识在多大程度上能够并且可能成为将自己之前被委托的任务委托给他人的理由。在现代行政国家中,一个负责任的受托人的专业方法——无论是出于建议还是次级委托的目的——会是什么样子?要回答这个问题,需要仔细研究专业知识的概念,以及如何在现代治理中应用和误用专业知识。本文仅对该问题进行了最简短的介绍,试图构建负责任的受托人在下放权力之前需要提出的问题。这些问题包括:(1)校长自身知识的极限是什么?(2)有什么理由认为,即使在原则上,专家也可以填补知识上的空白?(3)考虑到普遍存在的次优问题,在任何特定情况下,专家知识的应用会导致更好的决策吗?(4)你是否选择了合适的专家,他们是否会真正运用他们的专业知识,而不是用他们声称的专业知识作为追求其他目标的幌子?在现代行政国家的背景下,这些问题只是一个更广泛的问题的一个方面,即非专家试图在事实之前和之后评估专家的工作成果。
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来源期刊
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期刊介绍: Social Philosophy and Policy is an interdisciplinary journal with an emphasis on the philosophical underpinnings of enduring social policy debates. The issues are thematic in format, examining a specific area of concern with contributions from scholars in different disciplines, especially philosophy, economics, political science and law. While not primarily a journal of policy prescriptions, some articles in each issue will typically connect theory with practice. The 2006 issues are "Justice and Global Politics" and "Taxation, Economic Prosperity, and Distributive Justice". The 2007 issues will be "Liberalism: Old and New" and "Ancient Greek Political Theory".
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