Abstract

This article illuminates the normative basis for international law's regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects' secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt's critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

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Additional Information

ISSN
1085-794X
Print ISSN
0275-0392
Pages
pp. 39-87
Launched on MUSE
2012-02-24
Open Access
No
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