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Profile: Evan Fox-Decent (McGill University)
  1. Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens.
    For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens"- peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, (...)
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  2. Evan J. Criddle & Evan Fox-Decent, Deriving Peremptory Norms From Sovereignty.
    In international law, the term "jus cogens" refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. Although the jus cogens concept has achieved widespread acceptance, international legal theory has yet to furnish a satisfying account of jus cogens's legal basis. We argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant's discussion of the (...)
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  3. Evan Fox-Decent, Fashioning Legal Authority From Power: The Crown-Native Fiduciary Relationship.
    The prevailing view in Canada of the Crown-Native fiduciary relationship is that it arose as a consequence of the Crown taking on the role of intermediary between First Nations and British settlers eager to acquire Aboriginal lands. First Nations are sometimes deemed to have surrendered their sovereignty in exchange for Crown protection. The author suggests that the sovereignty-for-protection argument does not supply a compelling account of how Aboriginal peoples lost their sovereignty to the Crown. Furthermore, Aboriginal treaties compel the courts (...)
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  4. Evan Fox-Decent, Parliamentary Privilege and the Rule of Law.
    Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. The rule of law, on the other hand, insists that everyone - including public officials - is subject to the law. Moreover, the rule of law is usually understood to involve judicial review of executive rather than legislative action. Thus, parliamentary privilege seems to establish a public sphere that is beyond the rule of law. Notwithstanding the tension that appears between these two (...)
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  5. Evan Fox-Decent, The Charter and Administrative Law: Cross-Fertilization in Public Law.
    The relationship between Canadian administrative law and the Canadian Charter of Rights and Freedoms is complex and still unfolding. If a decision touches a Charter right, frontline decision-makers and reviewing courts alike determine the requirements of legality using the Charter, administrative law principles, or some combination of the two. There is an emerging consensus that the Charter does not replace the common law, but rather embodies and supplements fundamental legal principles contained within it.This chapter sets out various ways in which (...)
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  6. Evan Fox-Decent, The Fiduciary Nature of State Legal Authority.
    The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for the state's legal authority and (...)
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  7. Evan Fox-Decent (2012). Hobbes' Relational Theory : Beneath Power and Consent. In David Dyzenhaus & Thomas Poole (eds.), Hobbes and the Law. Cambridge University Press.
  8. Evan Fox-Decent (2011). Sovereignty's Promise: The State as Fiduciary. OUP Oxford.
    Political theory is traditionally concerned with the justification and limits of state power. It asks: Can states legitimately direct and coerce non-consenting subjects? If they can, what limits, if any, constrain sovereign power? -/- Public law is concerned with the justification and limits of judicial power. It asks: On what grounds can judges 'read down' or 'read in' statutory language against the apparent intention of the legislature? What limits, if any, are appropriate to these exercises of judicial power? -/- This (...)
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  9. Evan Fox-Decent & Evan J. Criddle (2009). The Fiduciary Constitution of Human Rights. Legal Theory 15 (4):301.
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  10. Evan Fox-Decent (2008). Is the Rule of Law Really Indifferent to Human Rights? Law and Philosophy 27 (6):533 - 581.
    A broad range of scholars contend that the rule of law is indifferent to human rights. I call this view the "no-rights thesis," and attempt to unsettle it. My argument draws on the work of Lon L. Fuller and begins with the idea that the fundamental justification of the rule of law rests on a juridical conception of human agency, one that finds expression in the legal and moral claims that can arise from human agency within the context of legal (...)
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  11. Evan Fox-Decent (1998). Why Self-Ownership is Prescriptively Impotent. Journal of Value Inquiry 32 (4):489-506.
    The self-ownserhip thesis claims that people are the rightful owners of themselves, and that as a consequence that are entitled to do as they please, and appropriate what they will, just so long as they do not harm others. I argue that this no-harm proviso is problematic in that our best conception of harm is not that A harms B if, and only if, A makes B worse off, but rather that A harms B if, and only if, A's action (...)
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