Who Trusts the Trustees? (Answer: No One Should)

The concept “trustees of humanity” has attracted repeated criticisms since my 2013 Article appeared. Several commentators brought to mind numerous historical precedents for the disingenuous uses of “trust,” and drew attention to the particular danger of combining it with the concept of “humanity.” These concepts have been invoked to rationalize colonialism and foreign domination. As is well known, the European powers apportioned Africa among them ostensibly for “furthering the moral and material well-being of the native populations,” the League of Nations used trusteeship to justify a new form of colonialism, and the problematic relationship between occupier and occupied under the law of occupation has been referred to as trusteeship.

The critics weren’t moved by the important work that the concept of trust has done in developing domestic public law (it is mentioned in English caselaw already in 1592). These critics also weren’t convinced by the retort that my version of trusteeship of humanity did not support giving more powers over foreign stakeholders, but just the opposite, requiring more burdens on trustees’ resources and more constraints on trustees’ autonomy.

Now, digging deeper into the concept of trust (thanks to Neil Walker’s suggestion) would help, I hope, to disarm the critics and overcome their resistance. The key to understanding the work of the concept of “trust” is to juxtapose it against close but distinct concepts such as “faith” or “confidence.” The comparison immediately explains why judges chose “trust” rather than “faith” to denote the relationship between the lawmaker and the administrative agency: the legislator had no confidence in the agent. The concept of trust denoted the need for law to remedy the lack of confidence.

The concept of trust does suggest that there should be an assumption that the trustee can be trusted. In fact, it is just the opposite. As Niklas Luhmann wrote, trust “presupposes a situation of risk,” in fact, a serious risk “where the possible damage may be greater than the advantage you seek.” The need to trust emerges, as Virginia Held pointed out, “exactly when we least know whether a person will or will not do an action.” Adam Seligman suggests that the rise of the concept of “trust” must be viewed as “an attempt to posit new bonds of general trust in societies where primordial attachments were no longer ‘goods to think with.’”

There is probably no space where trust is needed more than In our interdependent global space.

“Trusteeship” underlines the need to remedy the lack thereof. We should not trust our trustees. We can have no confidence or faith in them. Their being our trustees indicates their untrustworthiness in the absence of effective remedial norms and institutions (but the remedies are also inherently suspect for their possible lack of effectiveness). This is why we are entitled to account from them. Because trustees are inherently suspect they bear the burden of proving that they are entitled to our trust, never our confidence.