Preface: The Worlds of Fiduciary Theory

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. 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. 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, 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 …