Should we trust in trust?

American Business Law Journal

Volumn 34, Issue 2, 1996, Pages 183-204

  Koehn, Daryl ^a  

^a NONE

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[No Author keywords available]

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EID: 0040601102     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1996.tb00695.x     Document Type: Article

References (56)

1. Francis Fukuyama, Trust: The Social Virtues and The Creation of Prosperity (New York: Macmillan, 1995).
2. Annette Baier, "Trust and Anti-Trust," Ethics 96 (January 1986): 231-60; Trudy Govier, "Distrust as a Practical Problem," Journal of Social Philosophy 23 (Spring 1992) no. 1: 52-63.
3. Annette Baier, "Trust and Anti-Trust," Ethics 96 (January 1986): 231-60; Trudy Govier, "Distrust as a Practical Problem," Journal of Social Philosophy 23 (Spring 1992) no. 1: 52-63.
4. Some of these philosophers' concerns are now making their way into legal theorizing. Legal theorist Mitchell takes up some of Baier's concerns and develops them in Lawrence E. Mitchell, "Trust, Contract, Process," in Lawrence E. Mitchell ed., Progressive Corporate Law (Boulder, CO: Westview Press, 1995), 185-217.
5. George Santayana explores what he calls an "animal faith," a form of trust shared by animals and human infants. Santayana is quoted in James Hillman, Loose Ends (Dallas: Spring Publications, 1975), 64.
6. Baier, "Trust," 233-35.
7. Fukuyama, 26.
8. See Trudy Govier, "Self-Trust, Autonomy, and Self-Esteem," Hypatia 8 (Winter 1993), no. 1: 99-120.
9. Baier, "Trust," 253.
10. It might be argued that, in this case, the trustor trusts the trustee's judgment rather than in any shared norms. This line of thought has merit and is one I pursue at length in a forthcoming book. However, the trust literature, including the works by Baier and Fukuyama, grounds trust in shared, substantive norms.
11. Fukuyama, passim.
12. The "social virtue ... encourage spontaneous sociability and organizational innovation...." Fukuyama, 48.
13. Fukuyama, 1-57.
14. "Whatever matters to human beings, trust is the atmosphere in which it thrives." Sissela Bok, Lying (New York: Pantheon Books, 1978), 31n. "A society in which the trust principle is relegated to relative unimportance or, more to the point, to areas of life such as familial relations which, while important, have been treated as peripheral to the public life of our society, is a society which contains within itself the seeds of disintegration." Lawrence E. Mitchell, "Trust, Contract, Process" in Lawrence E. Mitchell, ed., Progressive Corporate Law (Boulder, CO: Westview Press, 1995) 209.
15. "Whatever matters to human beings, trust is the atmosphere in which it thrives." Sissela Bok, Lying (New York: Pantheon Books, 1978), 31n. "A society in which the trust principle is relegated to relative unimportance or, more to the point, to areas of life such as familial relations which, while important, have been treated as peripheral to the public life of our society, is a society which contains within itself the seeds of disintegration." Lawrence E. Mitchell, "Trust, Contract, Process" in Lawrence E. Mitchell, ed., Progressive Corporate Law (Boulder, CO: Westview Press, 1995) 209.
16. Govier, "Distrust," 54.
17. Baier, "Trust," 241.
18. Baier, "Trust," 241-42.
19. Baier, "Trust," 248.
20. Annette Baier, "What Do Women Want in a Moral Theory," Nous 19 (March 1985) no. 1: 55.
21. Baier, "Trust," 247.
22. Baier, "Women," 59.
23. Deborah A. Stone, "Promises and Public Trust: Rethinking Insurance Law Through Stories," Texas Law Review 72 (May 1994) no. 6: 1435-46.
24. Fukuyama, 8.
25. Fukuyama, 7.
26. Mitchell asserts that "trust [is] a virtue in the Aristotelian sense." Mitchell, "Trust," 199. This claim is highly suspect. Aristotle himself does not include trust in his list of virtues. See Aristotle, Nicomachean Ethics, especially books 3-5. I would contend that Aristotle understood that trust can never be a freestanding virtue. Our expectations need to be well-formed if trust is to avoid slipping into manipulation and projection.
27. Mitchell asserts that "trust [is] a virtue in the Aristotelian sense." Mitchell, "Trust," 199. This claim is highly suspect. Aristotle himself does not include trust in his list of virtues. See Aristotle, Nicomachean Ethics, especially books 3-5. I would contend that Aristotle understood that trust can never be a freestanding virtue. Our expectations need to be well-formed if trust is to avoid slipping into manipulation and projection.
28. Baier, "Trust," 236.
29. This example is drawn from Baier, "Trust," 239.
30. Baier, "Trust," 238.
31. For a sustained and nuanced argument in favor of greater trust within corporations and greater co-operation, see Lawrence E. Mitchell, "Co-operation and Constraint in the Modern Corporation: An Inquiry into the Causes of Corporate Immorality," Texas Law Review 73 (January 1995) no. 3: 477-537 and his "Trust" article, previously cited. One major difficulty with Mitchell's analysis is that he treats all trust and cooperation as ethically good. They obviously are not so. As I noted, one easily can find many counterexamples to this thesis. Furthermore, he seems to think that there is a set of rules for trust-based systems. See Mitchell, "Trust," 205. I offer arguments against this approach in Part Four. There is no universal spectator point of view from which to describe actions, much less judge them. In order to apply a rule to some action, we will need to characterize the action under some description. These descriptions are notoriously contestable, a point Mitchell ignores. Until this problem of contestability is addressed, we have little basis on which to think that a trust paradigm is going to lead to extensive cooperation among persons.
32. For a sustained and nuanced argument in favor of greater trust within corporations and greater co-operation, see Lawrence E. Mitchell, "Co-operation and Constraint in the Modern Corporation: An Inquiry into the Causes of Corporate Immorality," Texas Law Review 73 (January 1995) no. 3: 477-537 and his "Trust" article, previously cited. One major difficulty with Mitchell's analysis is that he treats all trust and cooperation as ethically good. They obviously are not so. As I noted, one easily can find many counterexamples to this thesis. Furthermore, he seems to think that there is a set of rules for trust-based systems. See Mitchell, "Trust," 205. I offer arguments against this approach in Part Four. There is no universal spectator point of view from which to describe actions, much less judge them. In order to apply a rule to some action, we will need to characterize the action under some description. These descriptions are notoriously contestable, a point Mitchell ignores. Until this problem of contestability is addressed, we have little basis on which to think that a trust paradigm is going to lead to extensive cooperation among persons.
33. Fukuyama, 9.
34. Fukuyama, 304.
35. Fukuyama, 49-57.
36. Fukuyama, 297.
37. The language of "deculturation" is Fukuyama's, not mine. Fukuyama, 296. I do not accept the implication that African-Americans are without a culture.
38. Roger Fisher and Scott Brown, Getting Together (Boston: Houghton Mifflin, 1988), especially chapter 7; C.E. Osgood, "Suggestions for Winning the Real War with Communism," Journal of Conflict Resolution 1959 (3): 295-325; Sven Lindskvold, "Trust Development, the GRIT Proposal and the Effects of Conciliatory Acts on Conflict and Co-operation," Psychological Bulletin 1978 (85): 772-93.
39. Roger Fisher and Scott Brown, Getting Together (Boston: Houghton Mifflin, 1988), especially chapter 7; C.E. Osgood, "Suggestions for Winning the Real War with Communism," Journal of Conflict Resolution 1959 (3): 295-325; Sven Lindskvold, "Trust Development, the GRIT Proposal and the Effects of Conciliatory Acts on Conflict and Co-operation," Psychological Bulletin 1978 (85): 772-93.
40. Roger Fisher and Scott Brown, Getting Together (Boston: Houghton Mifflin, 1988), especially chapter 7; C.E. Osgood, "Suggestions for Winning the Real War with Communism," Journal of Conflict Resolution 1959 (3): 295-325; Sven Lindskvold, "Trust Development, the GRIT Proposal and the Effects of Conciliatory Acts on Conflict and Co-operation," Psychological Bulletin 1978 (85): 772-93.
41. I summarize and analyze various arguments for client confidentiality in Koehn, The Ground of Professional Ethics (London: Routledge, 1994), chapter 8.
42. Govier, "Distrust," 53.
43. Nor is it obvious that we even need some of these practices in order to get along with one another. Baier does an interesting thought experiment in which she imagines a community without the institution of promising. She argues rather persuasively that such a community could still be trusting. Annette Baier, Tanner Lectures, Lecture #2, unpublished version, 22-32.
44. Govier, "Distrust," 53.
45. Similar cases abound in the professions. Does my lawyer become untrustworthy if he breaks a promise to meet with me to discuss a pending divorce case in order to file a last minute death row appeal? I would say no. Professionals are entitled to revisit continually their priorities in light of their core mission.
46. Mitchell, too, would have us rely on our past experience of persons and institutions as the basis for our judgments of trustworthiness. Mitchell, "Trust," 204.
47. Baier, Tanner Lectures, Lecture #2, unpublished version, 15-17.
48. I argue that the ends of the learned professions of medicine, law, and the ministry are genuine goods in Koehn, 69-116. This argument is too long and complex to reproduce here.
49. Koehn, passim.
50. An English version of the Hippocratic oath appears in Leon Kass, Toward A More Natural Science (New York: Macmillan, 1985), 228-29.
51. For an argument along these lines, see Mitchell. "Co-operation," passim.
52. I develop this point at length in Koehn, 39-43.
53. M.K. Gandhi, Collected Works of Mahatma Gandhi, Publications Division, Ministry of Broadcasting, Government of India, vol. XXII; William James, "The Will to Believe," in John Hick, ed., Philosophy of Religion (Englewood Cliffs, NJ: Prentice-Hall, 1970), 214-31.
54. M.K. Gandhi, Collected Works of Mahatma Gandhi, Publications Division, Ministry of Broadcasting, Government of India, vol. XXII; William James, "The Will to Believe," in John Hick, ed., Philosophy of Religion (Englewood Cliffs, NJ: Prentice-Hall, 1970), 214-31.
55. Fisher and Brown, quoted in Govier, "Distrust," 61.
56. H.J.N. Horsburgh, a leading interpreter of Gandhi's thought, develops this line of reasoning in his article "The Ethics of Trust," Philosophical Quarterly 10 (1960): 343-54.