Evan Fox-Decent (McGill University - Faculty of Law) has posted Fiduciary Authority and the Service Conception (Philosophical Foundations of Fiduciary Law, Andrew Gold & Paul Miller eds (OUP, 2014) (Forthcoming)) on SSRN. Here is the abstract:
Joseph Raz’s “normal justification thesis” lies at the heart of his service conception of authority. The normal justification thesis asserts that the normal way to show that A is an authority for B is to show that B is likely to comply better with reasons that apply to her independently by treating A’s directives as authoritative rather than by acting on her own judgment directly. Numerous scholars have leveled a particularly devastating criticism against this account of authority. Roughly, the criticism is that it cannot account for the special standing of authorities to impose duties on the individuals subject to them. Raz, it is claimed, confuses counsel with command, and this because he treats authority as a relation between persons and reason, whereas authority really denotes a relationship between persons.
Taking this criticism on board, I argue that the substance of Raz’s theory can be salvaged if it is located within an appropriate interpersonal framework. The interpersonal framework is fiduciary in nature, wherein the putative authority is subject to a fiduciary duty to issue directives that respect the other-regarding or ‘service’ reasons that warrant her possession of a directive-giving moral power. The authority’s fiduciary duty explains her moral power to change the normative position of the subject because that duty binds the fiduciary to exercise her power in a way that reflects the reasons for which she has the power in the first place.