Equity closely scrutinises relationships in which one party places trust and confidence in another. There are many examples of trust in human interaction, but equity cannot grant relief against every breach of trust and confidence, any more than contract law can enforce all promises. Only some trusting relationships and some obligations of confidence are protected. The relationships which equity protects are known as ‘fiduciary relationships’. A relationship of trust and confidence will be recognised as fiduciary where it arises from F (fiduciary) undertaking to act in the interests of B (beneficiary) in a matter which confers a discretion on F, and in respect of which the exercise of discretion affects B’s economic interests. B may hand over property to F, such as an investor handing over money to an investment adviser. A settlor may hand property to F to hold on trust for B. Alternatively, B may entrust F with the task of negotiating a contract on behalf of B so that F is B’s agent. Or F may be entrusted with the task of obtaining information on behalf of B which will enable B to exploit a commercial opportunity. This is also an example of agency.

This chapter examines a central moral problem arising in connection with the law on State responsibility: the problem of justifying the liability of ordinary State subjects for the material fulfilment of the remedial duties arising from their State’s wrongs. After isolating the problem and explaining its relationship to the question of whether States are moral agents, it critically examines a range of different justifications for subject liability, with a focus on theoretical justifications that have received less extensive attention in the literature. It considers: (1) causal contribution, (2) benefitting, (3) duties of aid, (4) part-constitution, (5) authorisation, (6) fictive authorisation, (7) moral vicarious liability, (8) duties to support valuable institutions and (9) lesser evil. The overall conclusion is that, even when State subjects are not morally responsible for the wrong which triggered a remedial duty, there are not infrequently moral liability justifications for State subjects bearing the costs of remedial duties. However, in practice, the imposition of subject liability is likely to be fully justified only on lesser evil grounds.

This chapter considers the presentation of reason as judge and its ability to distinguish between rightful claims and groundless pretensions. As background for this parallel, Møller considers the eighteenth-century debate on the problem of outdated laws. As a solution to this problem, two positions on judicial discretion emerged: the discretionary position, in which judges should be given greater discretion, and the positivist position, which promotes legal reform. Møller then shows that the metaphor of reason as judge should be read in consideration of the background of the debate on legal reform: at the beginning of the Critique, reason is a judge who is dissatisfied with the laws proposed by metaphysicians, but through the work these are revised and made to accord with reason’s own principles, thus making it legitimate to make judgements in accordance with the approved laws. This account of epistemic authority should be understood in connection with the formulation of cognition as judging, which makes the central question of epistemology one of legitimacy, proving which judgements thinkers can legitimately make.