Trust, Distrust, and the Rule of Law

Forthcoming in Fiduciaries and Trust: Ethics, Politics, Economics and Law, Paul B. Miller and Matthew Harding, eds. Cambridge: Cambridge University Press.

UNC Legal Studies Research Paper

37 Pages Posted: 12 Jun 2019

See all articles by Gerald J. Postema

Gerald J. Postema

University of North Carolina - Philosophy

Date Written: May 27, 2019

Abstract

The rule of law is about the law’s ruling. Law rules when it provides protection and recourse against the arbitrary exercise of power through the distinctive instrumentalities, powers and capacities of law; but law can rule in a political community only when its members, official and lay members alike, take responsibility for holding each other accountable under the law. An ethos of fidelity is fundamental to the vitality of the rule of law. However, it is often argued that a culture of accountability generates a culture of suspicion and distrust. Accountability, they say, drives out trust. The demand for accountability stems from and publicly expresses distrust. But, then, if accountability is at the heart of the rule of law, and distrust is the condition and consequence of accountability, we cannot look to the rule of law to underwrite a robust program of controlling the exercise of ruling power. This the “trust challenge” to the rule of law. In this paper, I argue that the trust challenge can be met, that accountability does not depend on or express distrust. On the contrary, I argue, accountability is a key component of trust-supporting moral and social relationships. Fidelity and trust are compatible and mutually supporting.

Keywords: trust, distrust, accountability, fidelity, rule of law, arbitrary

Suggested Citation

Postema, Gerald J., Trust, Distrust, and the Rule of Law (May 27, 2019). Forthcoming in Fiduciaries and Trust: Ethics, Politics, Economics and Law, Paul B. Miller and Matthew Harding, eds. Cambridge: Cambridge University Press.; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3394978

Gerald J. Postema (Contact Author)

University of North Carolina - Philosophy ( email )

Caldwell Hall
CB #3125
Chapel Hill, NC 27599-3125
United States

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