Interview: The Right Honourable David Johnston on Trust

JM:

Your new book discusses how the traits of a trustworthy person are the same traits of a trustworthy nation. How does that idea respond to the rise of nationalism and move away from globalism?

DJ:

We wrote the book because I was worried about the erosion of trust in public institutions. And as we examined that, we realized that there’s an impact on local organizations, neighborhoods, communities, cities, business, etc., all the way down to the individual.

We reversed that arc in three parts. The first is this one great trust in oneself: how do you make yourself a trustworthy person? Next, how do you make trustworthy organizations around you? And finally, how do you create a trustworthy nation? All of that requires trying to combat some of the things that erode trust.

JM:

Would you say, on a national and individual level, that someone being trusting makes them more trustworthy? How are those two things interrelated?

DJ:

Trust is both a noun and a verb. One’s a state of fact, the other’s an action. But I think if you are a trusting person and looking to place trust in someone, you look for a counterpart that reflects those same values equally. If you’re a nation trying to engage in a relationship with another nation, it’s much easier to do with a trustworthy counterpart. Stephen Covey writes a book called “The Speed of Trust.” The speed of trust is: the more trust you have in any transaction with another, the speedier, the less time it takes, the less cost involved. But the less trust you have, the slower, the longer it takes, and the greater the cost. If you’re negotiating and you settle on a handshake. (We shake hands.) We do that, and I don’t worry about it, you don’t worry about, we never have to worry about enforcement.

JM:             Because we both have trust in one another.

DJ:

*Nods.* But to turn to the law: we wrote a book called Cyberlaw, in which we looked at the impact of computers in the digital world on transactions  and the movement from a paper based authenticity system to an electronic authenticity system.

David Johnston speaking to Weldon students

You know, the Law Merchant of Medieval Europe would take months to travel from England to the Frankfurt Book Fair, for example. And he would enter into a contract for books to be sent to London. He would pay in advance, but how did he know that shipment would be delivered? It was based on trust, not legal enforcement. Your family had been doing business for three or four generations, and you would never dishonor the contract. Because your family reputation would be gone.

JM: And your business would be gone.

DJ:

You never thought you could relate this to a Contracts class, did you?

JM:

No, and I’ve learned so much, I’m glad I skipped contracts to be here. *Laughter. * But my family comes from business, so I understand what you mean. There can be no deal made without trust between parties.

DJ:

We deal with that in another part of the book. Adam Smith is seen as the father of capitalism. And the objective of capitalism is, well, the free markets prevail, and the pursuit of private property will harmonize interests, so everyone will gain. But some of us don’t believe that. Some of us believe sometimes free markets need regulation. And so did Adam Smith.

We think of Adam Smith as a Professor Economics. But he was a Professor of Moral Philosophy, not economics, at the University of Glasgow in 1775 when he wrote The Wealth of Nations. The invisible hand that we think today harmonizes the pursuit of private interest was not an economic framework, but a moral one.

JM:

Do you think that’s what people forget now? That our investor-based economy requires a moral center to keep things fair?

DJ:

That’s what Adam Smith taught. But another story we tell in the book is about Robert Schiller, the Yale economist who won the Nobel Prize for behavioral economics. I saw him speak at a conference for innovation because I wanted to hear his theory on behavioral economics. But he didn’t speak a word about it. He spoke about the Golden Rule. He said if you look at all the great religions in the world, they have one thing in common: it’s love thy neighbor as thyself or treat your neighbor as you would have yourself treated. It’s trust. And for him that’s a healthy market.

JM:             To return to where we started: do you think this erosion of trust is creating movements towards nationalism?

DJ:             Erosion of trust may be a symptom, not a cause. I’m worried about the erosion of trust in public institutions, but as we examine that, we also saw an erosion of trust in business organizations, neighborhoods, communities, and even on an individual level. If enough individuals make themselves trustworthy, though, the rest will follow suit.             But I think we live on a hinge of history, in a huge age of destruction. Partly because of the isolating quality of wealth. And partly because the digital revolution is so much more rapid than the information revolution that followed the printing press, so much faster, and so much more ambiguous.

JM:

And that speed accelerates disagreement and discord.

DJ:

And we’re also living in an age in which technological advances have happened so fast: we’ve had globalization, and we’ve had changes occur at an incrementally faster rate where it’s difficult for our human capacity to respond. So, our traditional values are tested, and we see manifestations of real fear and anxiety rising in their place. And the notion of the Other as to be feared rather than the Other to be embraced is part of that.

JM:

And that fear of the Other is another symptom.

DJ:

That’s right.

JM:

You’ve written about Indigenous innovation and invention in your book, Ingenious. How do you think trust should play into Canada’s beginning recognition of Indigenous justice systems?

DJ:

One element of trust is when you’ve done wrong, face up to it clearly, don’t minimize it, and apologize fully. And having done that, then move onto reconciliation. So, we say that no book about trust in Canada would be complete if it did not deal with our relations with Indigenous peoples, particularly in relation to residential schools. The apologies given by Prime Ministers Harper and Trudeau in 2010 and 2015, respectively, was an important starting point for us in dealing with that distrusting relationship that had emerged over two or three hundred years, but in particular over Residential Schools. Getting that right is an important step for healing the nation.

JM:

And how do you think trust will play a role in the introduction of Indigenous justice systems into the larger Canadian justice system?

DJ:

The first thing is simply understanding the history of our Indigenous people before the first European settlers. They did have justice systems and they had governance systems, so let’s learn from them and recognize that in modern-day Canada, they wish to be vibrant, vital Canadians but they don’t want to abandon their governance systems or their justice systems.

 

JM:

It seems to me that, although very diverse, Indigenous justice systems seem to operate on a real sense of communal trust. Would you agree with that?

DJ:

The Rule of Law with a view of justice is based on trust. We speak about the distinction between law and justice. Law is a statement of rules. Justice is a set of values. And if I were to start a law school tomorrow, over the door it would say, “Is Law Just?” We as lawyers take an oath to improve the administration of justice. Take, for example, the Doctrine of Frustration in contract. We ask whether that interpretation of the court—which is the Rule of Law, or statute—is consistent with our fundamental concept of justice. If it’s not, it is our job to change it, and if it is, it’s our job to reinforce it.

There’s another part of the book where we speak about the importance of that in Canada. At Chief Justice McLachlin’s retirement dinner, I was saluting her leadership in the Court. I said this will be seen, around the world, as one of the distinguished courts in justice for several reasons. One is the interpretation of the Charter of Rights and Freedoms, which was engrafted into our constitution in 1982, mixing two systems: the Western Common Parliamentary Sovereignty system with the European Civil Law, where you have a statute, a governing code that impinges on the sovereignty of Parliament. You have unelected people who interpret Parliament. But as Canadians, we weren’t quite ready to go all the way, so we put in a Notwithstanding Clause, as a kind of a statement—a very typical Canadian compromise. I remember scholars at that time were saying, “You can’t make those two systems work.” But that court made it work. Not perfectly, but the Charter of Rights and Freedoms in fact has been a vibrant part of our Constitution. And that contradiction, that same contradiction they have of 1763 saying we can have Civil law in Quebec and common law in the rest of Canada—they say, two systems of law? Two legal traditions of Western civilization in one place? It can’t work. But that court made it work.

The other distinguished contribution of that court has been the carving out of a body of Indigenous law where you had no legislative framework to begin with. And you didn’t have the basic principle of the law of conquest, which has served in most jurisdictions where Europeans have come in and taken over. And the law flows from that. But Canada’s going back to a kind of shared concept, which is more bit difficult. But in a measured way, I think that court has carved out a body of Indigenous law that is getting us to a more trusting relationship.

JM: People don’t trust lawyers. Have you heard this?

DJ: Some do, some don’t. I’ve got three in my family, and I trust them. *Laughter.*

JM:  I’ve seen the rankings. We’re just above used car salesman. My father was a car salesman, so I suppose I’m moving up.

DJ: My father was a car salesman for a time.

JM: But how do you think lawyers can become more trustworthy, or convince the public they are trustworthy?

DJ: I think it’s a noble profession. When we become lawyers, we take an oath to improve the administration of justice—not the Rule of Law, justice. And we try to take that seriously. That’s what you do in your studies here. If I was starting a law school tomorrow, I would make the decision that law is not simply an academic pursuit, but also a profession. And I would merge the apprenticeship of the knowledge of the law along with the practice of the law and the apprenticeship of the ethical framework of the law into one place. So I would teach law as you teach medicine. Where you teach the profession as well as the academic theory.

JM: Do you think the “Golden Rule” center of law is missing now?

DJ: The second part is teaching the how-to the practice the law, the first is teaching the cognitive discipline theory. I think you can teach all three, but if you say, give us three years and we’ll teach you the theory, then we’ll throw you into a bar admission course for a few weeks, and take some courses, you really don’t learn. I think you learn best if you put theory and practice together. And I think the ethical framework comes in when you’re actually dealing with actual problems, not just theoretical principles. But that would be a bit of revolution, that we would bring the law society and the law schools together and teach. When I taught at the Toronto Law School, we taught with one practitioner and one law professor. Frank Iacobucci and I, who later went to the Supreme Court, taught Corporate law, Corporate Finance, and we taught it with a practitioner. We had six different courses: all with a full time academic and a practitioner.

JM: We’re doing something along those lines here. Have you heard of the Weldon Tradition?

DJ: No.

JM: Schulich has a tradition of encouraging students to perform community service. We have Pro Bono Dalhousie, Dalhousie Student Advocacy Service, Dalhousie Legal Aid Service. Are those the things you’d like to see?

DJ: Yes, we’d build that right in.

JM: One last question. Many law students, including myself, have a constant feeling of not deserving to be where they are. You were the Governor General of Canada. Does that sense of Imposter Syndrome ever leave you?

DJ: *Laughs. * No. Never.

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