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Consent and Loyalty As Bases of Legitimate Political Authority

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Consent and Loyalty As Bases of Legitimate Political Authority ! ! ! ! Consent!and!Loyalty!as!Bases!of!Legitimate! Political!Authority! ! ! by! Jason!Grant!Allen!! B.A.!&!LL.B.!(Hons)!(University!of!Tasmania)!! LL.M.!(Universität!Augsburg)! Grad.!Dip.!Leg.!Prac.!(College!of!Law!Australia)! School!of!Law! ! ! ! ! ! ! Submitted!in!fulfilment!of!the!requirements!for!the!Master!of!Laws! University!of!Tasmania!July!2013! This thesis contains no material which has been accepted for a degree or diploma by the University or any other institution, except by way of background information and duly acknowledged in the thesis, and to the best of my knowledge no material previously published or written by any other person except where due acknowledgment is made in the text of the thesis, nor does the thesis contain any material that infringes copyright. All translations are my own, except as otherwise noticed. This thesis may be made available for loan and limited copying and communication in accordance with the Copyright Act 1968 (Cth). J.G. Allen July 2013 i Dedicated in gratitude to my mother Sincere thanks to my supervisors, Professor Gino Dal Pont and Mr. Michael Stokes, to whom I will remain indebted for their help and guidance at all stages of this project. I have benefited greatly from their criticism and encouragement as needed. The errors that remain despite these efforts are no reflection on their engagement as supervisors. ii CONTENTS TABLE OF CASES iv TABLE OF STATUTES v REFERENCES vi INTRODUCTION 1 CHAPTER ONE Genuine Consent as an Act of Meaningful Choice Introduction 4 The Consent Theory of Political Obligation and Legitimacy 5 A Critique of Consent Theory 12 Revised Consent Theory 18 Conclusion 39 CHAPTER TWO The Unconscionable Social Contract Introduction 41 Non-Consenting Subjects in the Liberal Democratic Polity 42 The Problem of Partial Legitimacy 63 Conclusion 75 CHAPTER THREE The Impartial Benevolent Spectator as Fiduciary Introduction 77 The Trust Theory of Government 79 The Forgotten History of the Forgotten Trust 87 Objections to Public Fiduciary Law 104 The Theory Applied 118 Conclusion 122 CONCLUSION 124 iii CASES Aboriginal Development Commission v Treka Aboriginal Arts and Crafts Ltd [1984] 3 NSWLR 502 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 Alfred Kinloch v Secretary of State for India in Counsel (1882) 7 App Cas 619 Bennet v Easedale (1626) 79 Eng Rep 821 Canada (Auditor General) v Canada (Minster of Energy, Mines and Resources) [1989] 2 SCR 49 Civilian War Claimants Association Ltd v The King [1932] AC 14 Coe v Commonwealth (1993) 118 ALR 193 Driscoll v Burlington-Bristol Bridge Co., 86 A.2d 201 (N.J. 1952) Earl of Shrewsbury Case (1611) 77 Eng Rep 798 Edgington v Fitzmaurice (1885) 29 Ch 459 Frame v Smith [1987] 2 SCR 99 Guerin v The Queen [1984] 2 SCR 335 Howe v Lord Dartmouth (1802) 7 Ves 137 Judd v McKeon (1926) 38 CLR 380 Mabo v Queensland (No. 2) (1992) 175 CLR 1 Marbury v Madison, 15 US 137 (1803) Mitchell v MNR [2001] SCC 33 R v Boston & Ors (1923) 33 CLR 386 R v Ewanchuk [1999] 1 SCR 330 R v White (1875) 13 SCR (NSW) L 322 Sir George Reynel’s Case (1612) 77 Eng Rep 871 Tito v Wadell (No. 2) [1977] Ch. 106 Town Investments Ltd v Department of the Environment [1978] AC 359 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Wewaykum Indian Band v Canada [2002] 4 SCR 245 iv STATUTES Constitution of Pennsylvania 1776 (USA) Commonwealth Electoral Act 1918 (Cth) Criminal Code Act 1924 (Tas) Declaration of Independence of the United States of America 1776 (USA) Fundamental Constitutions of Carolina (1669) Migration Act 1958 (Cth) Minnesota Criminal Code, Minnesota Statutes 2011 §609 (USA) Virginia Declaration of Rights 1776 (USA) v REFERENCES Trevor R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press 2001) Johannes Althusius (Frederick S. Carney trans.), The Politics of Johannes Althusius (Beacon Press 1964) John Langshaw Austin, How To Do Things With Words (Harvard University Press 1975) Isaiah Berlin, Four Essays on Liberty (Oxford University Press 1969) William Blackstone, Commentaries on the Laws of England (Clarendon Press 1766) Jean Bodin (M.J. Tooley trans.), Six Books of the Commonwealth (Blackwell 1955) Klaus Brinkbäumer, Der Traum vom Leben: Eine afrikanische Odysee (Fischer 2006) Keith Burgess-Jackson, Rape: A Philsophical Investigation (Dartmouth 1996) Simon Chesterman, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford University Press 2011) Cicero (Walter Miller trans.), De Officiis (William Heinemann 1913) Commonwealth of Australia, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Canberra 1997) Matthew Conaglen, Fiduciary Loyalty Protecting the Due Performance of Non- Fiduciary Duties (Hart Publishing 2011) Norman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge University Press 1996) Ronald Dworkin, Law’s Empire (Harvard University Press 1986) Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) Eugen Ehrlich (Walter L. Moll trans.), Fundamental Principles of the Sociology of Law (Harvard University Press 1936) Richard Falckenberg (A.C. Armstrong trans.), History of Modern Philosophy from Nicolas of Cusa to the Present Time (3rd Ed., Holt & Co 1893) Israel Finkelstein and Neil Asher Silberman, David and Solomon: In Search of the Bible’s Sacred Kings and the Roots of the Western Tradition (Free Press, New York 2006) Paul Finn (ed.), Essays on Law and Government Volume 1: Principles and Values (Law Book Co 1995) Samuel Freeman, Rawls (Taylor & Francis 2007) Samuel R. Gardiner (ed.), The Constitutional Documents of the Puritan Revolution 1625-1660 (Clarendon Press 1906) vi Melchior Goldast, Monarchia Sancti Romani Imperii Vol. 2 (Hanover 1611) John W. Gough, John Locke’s Political Philosophy: Eight Studies (Oxford University Press 1964) Otto von Gierke (F.W. Maitland trans.), Political Theories of the Middle Age (Cambridge University Press 1987) P.M.S. Hacker and Joseph Raz, Law, Morality, and Society: Essays in Honour of H.L.A. Hart (Clarendon Press 1977) Alexander Hamilton, James Madison and John Jay (Jacob E. Cooke ed.), The Federalist (Wesleyan University Press 1961) Scott Hershovitz, Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford University Press 2008) Don Herzog, Happy Slaves: A Critique of Consent Theory (University of Chicago Press 1989) John Hirst, Looking for Australia: Historical Essays (Black Inc. 2010) Barbara Ann Hocking (ed.), Unfinished Constitutional Business? Rethinking Aboriginal Self-Determination (Aboriginal Studies Press 2005) Thomas Hobbes (Richard Tuck ed.), Leviathan (Cambridge University Press 1991) Tony Honoré, Making Law Bind (Oxford University Press 1987) Alistair Hudson, Equity & Trusts (2nd Ed., Taylor & Francis 2001) David Hume (Alasdair MacIntyre ed.), Hume’s Ethical Writings: Selections From David Hume (University of Notre Dame Press 1979) Jonathan Israel, The Anglo-Dutch Moment: Essays on the Glorious Revolution and its World Impact (Cambridge University Press 2003) Wolfgang Kersting, Die politische Philosophie des Gesellschaftvertrags (Wissenschaftliche Buchgesellschaft 2005) Chandran Kukathas and Philip Pettit, Rawls: A Theory of Justice and its Critics (Stanford University Press 1990) Harold Joseph Laski, Political Thought in England from Locke to Bentham (Holt 1920) Peter Laslett and James S. Fishkin, Justice Between Age Groups and Generations (Yale University Press 1992) John Locke (Peter Laslett ed.), Two Treatises of Government (Cambridge University Press 1960) Paul E. Lovejoy and Nicholas Rogers, Unfree Labour in the Development of the Atlantic World (Routledge 1994) Alisdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Open Court 1999) Crawford B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon Press 1962) vii Frederick Maitland (A.H. Chaytor and J. Whittaker eds.), Equity – Also the Forms of Action at Common Law – Two Courses of Lectures (Cambridge 1929) Frederick Maitland (David Runciman and Magnus Ryan eds.), State, Trust and Corporation (Cambridge University Press 2003) Charles E. Merriam Jr., History of the Theory of Sovereignty Since Rousseau (Columbia University Press 1900) Catherine A. MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1989) John Stuart Mill (Mary Warnock ed.), Utilitarianism and On Liberty: Including Mill’s ‘Essay on Bentham’ and selections from the writings of Jeremy Bentham and John Austin (Blackwell 2003) Franklin G. Miller and Alan Wertheimer, The Ethics of Informed Consent (Oxford University Press 2011) Charles du Secondat Baron de Montesquieu (Anne M. Cohler, Basia C. Miller and Harold Stone eds.), The Spirit of Laws (Cambridge University Press 1989) Christopher W. Morris (ed.), The Social Contract Theorists: Critical Essays on Hobbes, Locke, and Rousseau (Rowman & Littlefield 1999) Robert Nozick, Anarchy, State, and Utopia (Blackwell 1974) Karl Olivecrona, Law as Fact (2nd Ed., Stevens & Sons 1971) Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard University Press 1971) Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law: Law, Society and Politics in Fifth-Century Athens (University of California Press 1989) Carole Pateman, The Problem of
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