Public Trust, Legitimacy, and the Rule of Law

I’d like to bring to the attention of Canada’s law societies — and courts, Attorneys-General, and everyone else who wields power in the legal system — five reports from each of the past five months about declining trust in government competence and institutional legitimacy, in Canada and elsewhere.

• In March 2022, the Johnson Shoyama Graduate School of Public Policy at the University of Saskatchewan assessed the national economic impact of the trucker convoy occupation of Ottawa the previous month, finding that “in the absence of effective and forward-thinking action by government, there will be less business investment, less foreign investment, a shrinking auto sector, less trust in government institutions, and slower growth in an economy where trend growth was already veering downward pre-pandemic.”
• In April 2022, the Institute for Research on Public Policy, commenting further on the Ottawa convoy occupation, observed that “the recent protests should remind us about the imprudence of underestimating how the combination of individual lack of civic literacy and the magnification of misinformation through social media can, in time, become detrimental to democracy in Canada.”
• In May 2022, the President and CEO of the Institute on Governance wrote in The Globe And Mail: “Trust is the mortar that seals Canada’s democratic foundations and public institutions together. Those seams are cracking. … Good governance means increased confidence in the decisions and actions by governments. That leads to greater legitimacy and acceptance of those decisions by citizens. Higher trust and faith in our public institutions then follows. These are existential concerns for any democracy today. Canada is not immune to these threats.”
• In June 2022, the former director general of Ontario’s Ministry of Citizenship and Multiculturalism wrote in the Toronto Star: “Passport delays, […] airport customs and screening delays … are adding to a general sense of government not being able to deliver on its core responsibilities. This risks further undermining trust in government and public institutions. The government needs to focus as much on service delivery and implementation aspects as on policy and program development.”
• In July 2022, Gallup reported the results of its latest survey of Americans’ confidence in their institutions: “This year’s poll marks new lows in confidence for all three branches of the federal government — the Supreme Court (25%), the presidency (23%) and Congress (7%). Five other institutions are at their lowest points in at least three decades of measurement, including the police (45%), the church or organized religion (31%), newspapers (16%), the criminal justice system (14%), and big business (14%).”

Democratic populations are suffering a deepening crisis of faith in the competence of their governments and institutions. This crisis has dovetailed with and amplified anger at leadership failures during the pandemic, grievances over chronic hardship and marginalization, and mounting frustration with repeated system failures that never seem to generate corrections or accountability.

The risk payload of these developments is huge. Nobody in a position of power should downplay the seriousness of potential threats to democratic norms anymore. Recent Congressional hearings into the January 2021 Capitol Hill Insurrection have made clear just how close the United States came to experiencing an actual coup d’étât last year.

Why should any of this matter to those of us in the legal sector, and to law societies in particular? Because these organizations’ primary directive — mandated long ago by the legislators who created law societies, on behalf of the public who elected them — is to regulate the legal sector and govern the legal profession “in the public interest.”

Here’s something that too many people in the legal profession fail to grasp: The public’s number-one interest in the legal system is that it works.

The public expects that laws will be created and enforced fairly and effectively; that the legal system will recognize, condemn, and remedy injury and injustice; and that any member of the public may affordably access the rights and benefits the law confers on them. The public expects that the law is supreme, equitable, and accessible — that it’s on their side.

Those of us who exercise legal power in society have promised to fulfill these expectations. We promised the public that the law will be exercised effectively and equitably, without favour to the rich or powerful. That’s how we like to define “the rule of law,” and although we botch the execution repeatedly, we’ve more or less managed it.

But what the public expects above all is that when they need the law, it will actually work. It will do the things it’s designed to accomplish, for the people it was designed to serve. Those of us who wield power in the law, who made all those other grand promises, have forgotten that functionality is the foundation of the rule of law. That’s where we’ve failed. That’s the promise we’ve broken altogether.

Sometimes, power holders break promises because they’re self-dealing or corrupt. More commonly, however, they break promises because they’re detached, self-absorbed, disorganized, compromised, or insufficiently competent. That latter category more aptly describes our present situation.

But what we need to understand is that from the public’s perspective, there is no effective difference between a legal system that’s stacked against them and a legal system that simply can’t get its act together. It all looks the same to them: One justice system for those with privilege, another justice system — no justice system, really — for those without.

In times of crisis, like our present one, incompetence is frequently interpreted as malice. In times of crisis, questions about competence become suspicions of animosity, and eventually, serious doubts about legitimacy.

The treatment for a society’s loss of faith in institutional competence and legitimacy begins with transparency: an honest, cards-on-the-table acknowledgment by the institution of the seriousness of the problem, the scale of public unhappiness, and the responsibility of the institution to find or at least coordinate the search for solutions.

Whether a government is capable of that — whether it can convince people that it has the competence to issue passports, or screen travellers, or keep ATMs operating when a wireless carrier goes down, and thereby retain its legitimacy — is a question for that government.

The question for law societies — and for courts, Attorneys-General, and everyone else who wields power in the legal system — is whether they have the competence to give the public a legal system that’s functional and fair, and thereby retain their legitimacy. That question needs an answer, right now.