Legality and Locality: The Role of Law in Central-Local Government Relations

By Martin I. Loughlin | Go to book overview

4
FIDUCIARY DUTY IN PUBLIC LAW

The idea of trust is fundamental to an understanding of all political relationships. Without trust all attempts at establishing co-operative relations would founder and it is only through trust that the complex arrangements of government can operate effectively. It is, for example, only because of the existence of trust that, under conditions of risk and uncertainty, capital investment can be undertaken.1 A socially extensive idea of trust is, however, rather difficult to establish. It is one thing to identify trust in friendship but quite another to situate it in the relationship between governors and governed. How, then, is a political relationship rooted in trust established? There would appear to be no simple answer to this question, though what does seems clear is that trust can be established only if 'relations are simplified, stylized, symbolized and given ritual expression; if, that is, they are coded in convention'. 2 This thus seems to suggest that the only society which is possible is one which is rooted in some sort of code; that is, a society in which 'the quality of persons is measured by the extent to which they observe this code'. 3 And this general line of inquiry seems to lead ultimately to the conclusion that the only viable type of society is an aristocracy.

Aristocracies, however, may take several different forms. The traditional form of aristocracy is founded on the notions of lordship, kingship and the majestic concept of sovereignty, all of which function in accordance with codes of honour. There are, however, modern variants of this aristocratic idea which may be seen to operate within the complex arrangements of modern government.4 One famous version of this is the iron law of oligarchy propounded by Michels: 'Who says organization, says oligarchy.' 5 The general point underpinning these modern forms is that governing institutions, being locked into a system of functional interdependence, come to depend on the evolution of understandings and conventions to guide their action. These understandings, which are vital to the effective functioning of government, are most commonly reflected in the practices

____________________
1
See N. Luhmann, ' "Familiarity, confidence and trust: problems and alternatives"' in D. Gambetta (ed.), "Trust. The Making and Breaking of Co-operative Relations" ( Oxford, 1988), ch. 6.
2
G. Hawthorn, ' "Three Ironies in Trust"' in D. Gambetta (ed.), Trust (above, n. 1), ch. 7 at 114.
3
Ibid.
4
See, e.g., G. Mosca, "The Ruling Class" ( New York, 1939), who divides all governments into two types -- the feudal and the bureaucratic; and N. Luhmann, "Trust and Power" ( Chichester, 1979), Pt. I, who presents the view that there are two sorts of trust -- a pre-modern sense founded on belief and a modern sense based on functional interdependence.
5
R. Michels, "Political Parties" ( Glencoe, 1958), 365.

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