Fiduciary relationships

Abstract

Although fiduciary relationships have a long tradition in Hammurabic, Jewish or Islamic codifications, they were especially conceived and instituted by Roman civil (private) law to normatively address asymmetrical interindividual relationships in which a settlor or beneficiary has an interest in the performance of a certain action, but does not have the experience, time or means to carry it out himself. Therefore, she needs a fiduciary to carry out that action, who does not necessarily have an interest in carrying it out to the satisfaction of the beneficiary. Since this is a problematic and potentially dangerous relationship for the beneficiary, both in private law and in democratic political relations, the fiduciary must be held accountable. That is why contemporary economics, law, bioethics and political philosophy have dealt with fiduciary relationships. In contrast, the fiduciary approach has been rare in the field of economics and society. A reflection on the interest of incorporating fiduciary analysis (in its empirical and normative dimensions) is proposed, illustrating it with the case of property. The necessary integration of the economic, social, legal and political dimensions in a fiduciary frame includes a reflection on the alleged fiduciary duty – and its correlative governance – to preserve the natural systems in which we live for the common good.