The Trans-Pacific Fiduciary Constitutionalism: Introducing Public Fiduciary to Japanese Constitution

Public fiduciary is a concept to legitimize the state authority and to explain the relationship between government and people. It is assumed a persuasive theory rather than the contract theory which has been dominant because public fiduciary does not need to presume the consent of all of the people that is necessary for contract theory.
As the fiduciary itself derives from common law counties, public fiduciary seems to apply only common law countries. However, there is a possibility to apply it to Japanese Constitution. Japanese Constitution has some provisions referring to “trust” and Japanese society is regarded as trust society rather than contract society. The standpoint of public fiduciary will also give the implication for the Japanese Court. It will change the judicial behavior and realize the judicial role as the constitutional actor to seek public interest. I overview the concept of public fiduciary and suggest the compatibility with Japanese Constitution.