Trust Matters

Cross-Disciplinary Essays

Raquel Barradas de Freitas, Sergio Lo Iacono, Raquel Barradas de Freitas, Sergio Lo Iacono

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509935260
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book examines the role of trust in public life. It seeks to contribute to a more nuanced understanding of certain fundamental concepts in political and legal theory, such as the concepts of authority, power, social practice, the rule of law, and justice by furnishing and sharpening our concepts of trust and trustworthiness. Bringing together contributors from across the social, cognitive, historical, and political sciences, the book opens up inquiries into central concepts in legal theory as well as new approaches and methodologies. The interdisciplinary contributions analyse the notions of trust, trustworthiness, and distrust and apply them to address a variety of problems and questions.

1

Introduction: The Virtue of Trust

RAQUEL BARRADAS DE FREITAS

Look around you: trust and distrust are everywhere, from political speeches to newspaper headlines, from public demonstrations to marketing campaigns, from politics to the judiciary, from competitive sports to public health, from the banking system to self-driven cars and big data.¹ Trust is necessary to life in society. It is central to human relationships – the trust we place in others signals how much we value them. Displaying trust in someone adds value to both their life and our own. We often respond to others’ trust in us with enhanced engagement and commitment. When we fail to be responsive to trust, we fail to be responsive to moral reasons. When we are incapable of trusting others, we are limited in our capacity to realise a certain kind of value in our lives, and we deprive others of the opportunity to be valued in a distinctive way. Trustworthiness is a virtue, but so is trust.

As we see a revival of interest in trust in public life, politics and the media, this is a good moment to look closely at and reflect about trust and trustworthiness. It matters what they are, how they relate to and differ from one another, and what their role is in complex societies. In an age of post-truth, alternative facts, populism, manipulation, disenchantment and uncertainty, it becomes urgent to shed light on the logic and value of trust. The current revival of interest in trust is a reaction to the various crises of trust in government, in the press, in science (scepticism about climate science), in medicine (scepticism about vaccines), and in expertise of all forms that we currently face. Distrust has driven some significant political shifts of the last few years in countries such as the United Kingdom and the United States.² It is also a driving force behind a wave of social conflict and unrest currently sweeping across the world, recently displayed in the 2016 Brexit referendum campaign and, even more dramatically, in the insurrection by supporters of President Trump in Washington DC on 6 January 2021. In general, people have become more suspicious of foreigners, immigrants and anyone outside the groups of which they are members and within which there is a shared sense of collective identity. Such conspicuous weakening of trust is accompanied by a dangerous vast misplacing of trust in the claims of those who share one’s prejudices or identity. The proliferation of conspiracy theories and misinformation on the internet and social media is both a cause and a symptom of this form of pathologically unwarranted trust.

In the last year, the Coronavirus pandemic has exposed fissures in the social tissue of countries around the world, including deeply rooted, abhorrent forms of inequality. It has also laid bare our need to rely on those who hold power over us, including those who have access to knowledge and resources which we are unable to access ourselves. Understanding trust and what justifies it allows us to strengthen our grasp of both its value and the limits of and alternatives to it in our personal, social and political lives. As individuals and members of political communities, we are vulnerable to betrayal.³ Placing trust in someone is a delicate thing to do: it can empower a person, but also expose them to harm. We need tools for determining when trust is warranted, and when it ought to be withheld.⁴

It has been said that superstition brings bad luck.⁵ So does the inflation of concepts. Trust, like other concepts such as interpretation, justice, or the rule of law, is currently at risk of overuse and overreach.⁶ The first aim of this volume is to reduce this risk by critically examining and sharpening our concept of trust. Recent philosophical literature shows us that there is a difference between relying and trusting, between distrusting and not trusting, between trusting someone and engaging in probabilistic reasoning about what they will do, between trusting someone and believing what they say or believing that they will do what we would like them to do, and so on. Despite the differences between trust and so many other things, we ordinarily use the word ‘trust’ to refer to all these many other things. And when we do so, as we often do, we do not make a linguistic mistake. The reader may wonder what justifies sharpening a concept which we all use successfully to communicate with one another in ordinary life, in different areas of public discourse, and in academic debate.

The answer is simple. What justifies sharpening the concept of trust is the value of trust. Trust is not only a conceptual tool for making sense of and improving our social, legal and political institutions; it is also an attitude that defines and gives shape to relationships and ways of life. Because trust is valuable, both intrinsically and instrumentally, we ought to understand it and its place in both personal relationships and public life much better than we currently do. We must clarify the role it plays in different domains of social life, the reasons for action and belief that it gives us, and the moral implications of both its presence and its absence. This volume aims to make a start by giving the reader a set of sharp conceptual tools to use across domains.

Many of our pre-theoretical understandings of what makes relationships healthy and good indicate that trust is valuable. Yet we find it challenging to explain why trust is good, why it is more desirable to trust than to distrust, to be trustworthy rather than unresponsive to trust, to be trusting rather than suspicious. When we attempt to transfer our intuitions about the desirability of trust in personal relationships to the relationship between citizens and political institutions, or between individuals or social groups and big corporations, we face additional challenges – such relationships differ from interpersonal ones in significant ways.⁷ We increasingly hear about a crisis of trust in governments, politicians, experts and in the institutional arrangements that we have come to take for granted. Yet public discourse continues to rely on a shared language of trust.

This volume collects original essays on trust. It examines the role of trust in public life and places analytic questions about the attitude of trust at the centre of a cross-disciplinary inquiry into its value. Most contributions to this volume are developed versions of papers presented at an international workshop organised by four Max Weber Fellows at the European University Institute in April 2018. Two of the organisers of that workshop are the editors of this volume, the other two were Marta Morvillo and Carolin Schmitz. Other chapters were commissioned in the following year and the collection expanded beyond the group of scholars who gathered at the Badia Fiesolana for the workshop. From the outset, the aim of this project has been to collect a cross-disciplinary sample of essays reflecting on the concepts of trust and trustworthiness, as used and applied by scholars across the social and cognitive sciences and in the humanities. The impulse was to fill a void in the jurisprudential literature, following the publication of The Philosophy of Trust in 2017,⁸ which remedied the relative neglect of trust by anglophone philosophers and paved the way for more new, interesting philosophical work on trust.⁹ However, with very few exceptions,¹⁰ no corresponding interest in trust has been forthcoming from those working in the philosophy of law or, more broadly, in legal theory.

The theory according to which the role of trust in public law and in politics ought to be explained by an analogy with fiduciary duties in private law has become influential in Anglo-American scholarship. Legal philosophers and constitutional theorists have developed various forms of the fiduciary theory of government and adjudication, addressing central questions in legal theory from new angles and engaging directly with the concepts of trust and trustworthiness and their role in public life. Timothy Endicott (Oxford) is one example. His recent essay ‘The Public Trust’¹¹ engages critically with the fiduciary theory of government and provides an alternative view of the role of trust in the relationship between citizens and the state, one which denies the power of an analogy with private fiduciary duties in understanding the role of trust in public law. Such questions have important ramifications, among other things, for questions about relations among legal and political authorities in a constitutional setting. Thinking rigorously about trust helps us to think rigorously about fundamental questions in both public and private law, including questions about the nature of the duties that the state and other legal and political authorities have to those whose lives they purport to legitimately regulate. These are important questions with direct implications for how one chooses to live one’s life.

Eight of the thirteen essays in this volume address the role of trust in politics, the constitutional arena and the life of legal institutions. One motivation for structuring the volume in a way that emphasises legally relevant themes has been to show lawyers, legal theorists and a more general readership that: (i) we can learn much about law and its limits by learning more about the logic and justification of power and authority; (ii) we can learn much about power and authority by learning more about the attitude of trust; and (iii) we can learn much about trust by talking to scholars working in other disciplines. The volume has been structured in such a way as to encourage contributors and readers alike to seek, identify and articulate connections among the various issues addressed in the essays. The index has been designed to identify points of contact among chapters. The thread running through the volume is the question of what, if any, role trust plays in making sense of and shaping various aspects of the life of social and political communities, including those aspects which are regulated by law.

Lawyers and legal theorists tend to take the necessity of law for social cooperation as a fact and give other mechanisms of coordination relatively short shrift. Trust has been thoroughly studied by sociologists, psychologists, cognitive scientists and behavioural economists as a mechanism of social cooperation. Social cooperation was also the starting point of philosophical work on trust, which has since expanded to the epistemology of testimony and to practical philosophy. However, legal theorists have not relied enough on the work on trust produced in the social, cognitive, economic and political sciences or in philosophy. Philosophers of law, more specifically, have not engaged with the philosophical literature on trust when addressing fundamental questions about the nature of law, including questions about the logic and justification of legal authority. Yet law and trust are not obviously mutually exclusive mechanisms of social cooperation. A clearer understanding of trust as a tool of cooperation and as a social virtue provides insight into the nature and limits of law as a social practice and as a means of social control and coordination. This volume’s distinctive contribution to the literature is to bring philosophical, sociological and legal conceptual tools together into a rigorous analysis of trust across domains.

Trust is often referred to as an affective attitude,¹² and some philosophers have claimed that we understand trust, at least in part, by understanding the moral emotions we experience when our trust is misplaced or betrayed. We currently witness a growing interest in the role of the emotions in politics and public life, as well as in theories of legal reasoning and argument, with an increasing openness to an interdisciplinary methodology. This goes hand in hand with a richer and more abundant literature on the moral emotions, the rationality of emotions, and on the contribution of the affective sciences to the study of law, legal reasoning and legal practices.¹³ In addition to these, greater attention is being paid to work in virtue ethics and virtue epistemology by legal scholars seeking an alternative to mainstream views on legal normativity, reasoning, deliberation and judgment. This volume fits into this new set of directions in legal theory by offering a selection of views on trust as an attitude with both cognitive and affective dimensions, a social and political virtue, a social practice, and a source of reasons for belief and action. Reflecting on the different dimensions of trust encourages us to think about emotion as continuous with perception and cognition and, more specifically, about the moral emotions. Such themes cut across theories of punishment (sanctions may have an expressive function and can convey moral norms; the moral emotions may have an important role to play both in communicating moral judgments and in the repair of broken trust relations), accounts of legal reasoning and adjudication (which in turn inform views on the limits of and relations between legal and moral reasoning and of the scope of the judicial role), and the philosophical foundations of different branches of law.

Notwithstanding a significant increase of interest in the topic of trust among philosophers in the last few years, there remains a gap between available scholarly work on trust in the social sciences, economics, the cognitive sciences, and political science, on the one hand, and the philosophical literature, on the other. The gap is particularly surprising given the relevance of the notion of trust in addressing fundamental questions in epistemology, moral philosophy, political philosophy and the philosophy of law. This volume aims to bridge that gap by starting a conversation between legal scholars and scholars working in other disciplines, who might not otherwise talk to each other. In addition to this, it seeks to start a much wider conversation between trust scholars and the general public.

I.Chapter Summary

Paul Bauer opens Part I of the volume with an essay titled ‘Conceptualising Trust and Trustworthiness’. Bauer’s contribution is one of three different proposed formalisations of trust included in this volume, informed by social sciences methodology and, more specifically, by empirical trust research. The aim of the chapter is to give theoretical sharpness to the concepts of trust and trustworthiness, noting that the latter has been relatively neglected in the sociology and political science literature. Bauer concludes, after carefully surveying the literature, that the concepts of trust and trustworthiness designate probabilities. Trust, on Bauer’s view, is a probabilistic expectation.

The same concern to sharpen our concept of trust can be seen in Sergio Lo Iacono and Martina Testori’s contribution to this volume. Their analysis in chapter three focuses on what they call the ‘classic formalisation’ of trust as a three-place relation (A trusts B to do X). They question the explanatory power of this formalisation, both for particular and general forms of trust. Lo Iacono and Testori propose a category-based formalisation of the trust relation. They assume that people typically adopt a deductive, top-down approach when responding and relating to their social surroundings and classify others on the basis of a set of properties which then serve as a foundation for expectations about their reliability. The notions o...