12 - Trust, Distrust and the Rule of Law

Summary

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 of law. But law can rule in a political community only when its official and lay members 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 practice of accountability generates a culture of suspicion and distrust: accountability 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.