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- Fidelity requires that all members of the political community, lay members and as well as the legal or ruling elite, take responsibility for holding each other, and especially law’s officials, accountable under the law. Fidelity is rooted in a community-wide ethos that provides the animating spirit of the rule of law.
academic.oup.com/book/44615/chapter/378601584Sovereignty, Equality, and Fidelity | Law's Rule: The Nature ...
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This chapter defends the centrality to the rule of law of the task of protecting individuals from power wielded by non-governmental entities and individuals. It also argues that the rule of law takes hold in a polity only when law is planted firmly in a commonwealth of mutual faithfulness to the differentiated and interconnected ...
Constitutional law must begin a step back from fidelity: it must step back from fidelity-as-originalism, fidelity-as-integrity, fidelity-as-representation-reinforce-ment, fidelity-as-contemporary-ratification, fidelity-as-following-the-Voice-of-the-People-expressed-at-constitutional-moments, and every other version of fidelity that might be infe...
It also argues that the rule of law is realized when law is planted firmly in a commonwealth of mutual faithfulness to the differentiated and interconnected responsibilities of fidelity to...
- Gerald Postema
- Introduction
- I. The Problem of Definition
- II. The Animating Forces of Fiduciary Duties
- III. Understanding The Purpose of The Fiduciary Concept
- Conclusion
- Annex
Why is the fiduciary concept so difficult to understand? After all, its history in English law dates back more than three hundred years and its philosophical and doctrinal origins reach back even farther. Fiduciary principles in common law jurisprudence predate even the seminal case of Keech v. Sandford1×1. [1726] EWHC Ch J76, Sel Ca t King 61, 25 ...
A. The Uncertainty of the Fiduciary Concept
Commentators in jurisdictions like Canada, the United States, England, Australia, and New Zealand routinely discuss the fiduciary concept in relation to a wide variety of scenarios.12×12. Fiduciary law has been applied, inter alia, to the relations between: parent and child; guardian and ward; doctor and patient; director or officer and corporation; tax adviser and client; partners; joint venturers; friends; Aboriginal band and Crown; former spy and government; army officer and government; li...
B. The Function and Purpose of the Fiduciary Concept
The mutability of fiduciary principles allows for their application to a wide variety of disparate fact situations and equally broad variety of interactions, but simultaneously renders the fiduciary concept inimical to precise definition. Many have attempted to define the fiduciary concept,27×27. See supra, note 23, Annex.Show morebut capturing its true nature has remained elusive. The best explanation for the failure to formulate an adequate definition of the fiduciary concept rests, perhaps...
The section that follows outlines the “essential fiduciary points of emphasis” that illustrate what is necessary to the practical implementation of the fiduciary concept and what ultimately separates it from other legal doctrines (Part II-A). This section seeks to render more concrete the more philosophical discussion of the fiduciary concept that ...
A. Focusing on the “Big Picture”
As has previously been suggested, the fiduciary concept is the purest doctrinal expression of equity. It proudly exhibits a strong ethical focus that draws from its historical connection to Canon law as well as its roots in traditional notions of conscience.148×148. See Rotman, Fiduciary Law, supra note 2 at 176–80.Show more Unlike the traditional bases of civil obligations, which exist primarily to foist liability upon wrongdoers and award relief to aggrieved persons, the fiduciary concept f...
B. Meinhard v. Salmon: Illustrating Fiduciary Purpose
The landmark case of Meinhard is likely the most famous case involving the application of fiduciary principles, surpassing even the seminal case of Keech. It is also one of the leading business law cases in American law. Beyond a doubt, it is the most often quoted and eloquent exposition of fiduciary law’s foundational purpose. In the case, Chief Justice Cardozo makes full use of equity’s unique methodology to fashion a situationally-appropriate result that is consistent with fiduciary law’s...
This article has sought to provide a context in which to appreciate the operation of the fiduciary concept and the purpose it is intended to fulfill. In the process of gaining a greater contextual appreciation of the fiduciary concept and its purpose, this article has elucidated the fiduciary concept’s reason for being, a brief description of the d...
Peter Birks Peter Birks, “The Content of Fiduciary Obligation” (2000) 34:1 Israel L Rev 3. Peter Birks, “Equity in the Modern Law: An Exercise in Taxonomy” (1996) 26:1 UWAL Rev 1. Peter Birks, “The New Equity and the Need for Certainty” in Frank E McArdle, ed, The Cambridge Lectures, 1987(Montreal: Yvon Blais, 1989) 309. Matthew Conaglen Matthew Co...
- There is no single universally-agreed definition of the rule of law. But its core concepts include limits on state power, clarity and accessibility of the law, equality before the law, protection for fundamental rights, judicial independence and access to justice. Background
Jan 7, 2020 · He describes how justices on the Right and the Left have reached different kinds of results that matter to them, by interpreting the Constitution with fidelity to its text and with fidelity to their role—to the institutional responsibility of the Court.
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