Clarifying Parens Patriae

Abstract

Throughout the Anglo-American legal world, the state claims an authority, termed parens patriae, to exert control over the lives of nonautonomous persons in ways it does not presume to control autonomous persons. Philosophers have given little attention to when and how that authority should be exercised, yet there is disagreement or confusion about this among courts and legal scholars. This article examines how parens patriae differs from other government roles, identifies which conceptions of the parens patriae role are coherent, and then presents a normative case for adopting a conception of the role as that of fiduciary for nonautonomous individuals, subject to a duty of undivided loyalty. The implications of adopting this conception are dramatic.