The Public Trust

Abstract

All public power is held in trust. That explains the attraction of the fiduciary theory of government, which treats the duties of trustees and other fiduciaries in private law as an explanatory analogue for the duties of public officials and agencies, including the state. But I argue that, although public agencies have many fiduciary duties, and public officials generally have fiduciary duties to the agencies in which they serve the community, public duties are not generally fiduciary. Public power is held in trust in the sense that it is to be exercised for the public good. I seek to explain the fundamental difference between that duty of service to a community, and the fiduciary’s duty to serve the interests of beneficiaries.

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