Lawrence McNamara
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231454
- eISBN:
- 9780191710858
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231454.001.0001
- Subject:
- Law, Law of Obligations
The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law ...
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The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law that have been observed for over a century. It develops a theory of reputation and uses it to analyse, evaluate and propose a revision of the law. Using the concept of reputation as the vehicle for a study of the history and theory of libel, slander and honour it becomes apparent that, contrary to the legal orthodoxy, defamation law did not aim and function to protect reputation until the early 19th century. Consequently, the historically derived tests for what is defamatory do not always protect reputation adequately or appropriately. The ‘shun and avoid’ and ‘ridicule’ tests should be discarded. The principal ‘lowering the estimation’ test is more appropriate but needs re-working. Christian tradition and Victorian moralism are embedded in the idea of ‘the right-thinking person’ that provides the test's conceptual foundations, but these are problematic in an era of moral diversity. Instead, ‘the right-thinking person’ should be associated with an inclusive liberal premise of equal moral worth and a shared commitment to moral diversity; any departure from this must be justified on sound, expressly stated ethical grounds. That demand serves to protect reputation appropriately and effectively in an age of moral diversity.Less
The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law that have been observed for over a century. It develops a theory of reputation and uses it to analyse, evaluate and propose a revision of the law. Using the concept of reputation as the vehicle for a study of the history and theory of libel, slander and honour it becomes apparent that, contrary to the legal orthodoxy, defamation law did not aim and function to protect reputation until the early 19th century. Consequently, the historically derived tests for what is defamatory do not always protect reputation adequately or appropriately. The ‘shun and avoid’ and ‘ridicule’ tests should be discarded. The principal ‘lowering the estimation’ test is more appropriate but needs re-working. Christian tradition and Victorian moralism are embedded in the idea of ‘the right-thinking person’ that provides the test's conceptual foundations, but these are problematic in an era of moral diversity. Instead, ‘the right-thinking person’ should be associated with an inclusive liberal premise of equal moral worth and a shared commitment to moral diversity; any departure from this must be justified on sound, expressly stated ethical grounds. That demand serves to protect reputation appropriately and effectively in an age of moral diversity.
Lawrence McNamara
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231454
- eISBN:
- 9780191710858
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231454.003.0010
- Subject:
- Law, Law of Obligations
The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap ...
More
The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap in the common law by providing a principled, theoretically coherent statement of law regarding what is defamatory. This chapter proposes a new legal framework that aims to meet that goal. Only the principal test for what is defamatory should be retained because it is the only one that meaningfully protects reputation. However, the common law should dispose of the traditional, exclusive presumptions that form the content of ‘the right-thinking person’ and instead use inclusive presumptions that are premised upon an acceptance of equal moral worth. Any displacement of these presumptions should be controversial. A departure from the commitment to equal moral worth should be made only with great care and caution.Less
The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap in the common law by providing a principled, theoretically coherent statement of law regarding what is defamatory. This chapter proposes a new legal framework that aims to meet that goal. Only the principal test for what is defamatory should be retained because it is the only one that meaningfully protects reputation. However, the common law should dispose of the traditional, exclusive presumptions that form the content of ‘the right-thinking person’ and instead use inclusive presumptions that are premised upon an acceptance of equal moral worth. Any displacement of these presumptions should be controversial. A departure from the commitment to equal moral worth should be made only with great care and caution.
Lawrence McNamara
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231454
- eISBN:
- 9780191710858
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231454.003.0006
- Subject:
- Law, Law of Obligations
This chapter evaluates the manner and extent to which reputation is protected under modern common law. Section I looks at the place moral judgment has occupied in the principal test for what is ...
More
This chapter evaluates the manner and extent to which reputation is protected under modern common law. Section I looks at the place moral judgment has occupied in the principal test for what is defamatory. By examining the actionability of particular imputations and general statements of legal principle, it is possible to see how the legal standard of judgment gradually acquired a particular content, that being the traditional values of Christian morality. Section II addresses the quantitative dimension of diversity and it is suggested that the American ‘sectional standards’ test is to be preferred to the Anglo-Australian law that looks to the ‘general standards’ of the community. Section III moves to the substance of the views held in a jurisdiction. It looks at how qualitative distinctions have been drawn between different moral taxonomies to limit the legal protection of reputation in particular ways. Here, it is suggested that determinations of defamatory capacity depend upon processes of ‘ethical recognition’ of criteria for moral judgment.Less
This chapter evaluates the manner and extent to which reputation is protected under modern common law. Section I looks at the place moral judgment has occupied in the principal test for what is defamatory. By examining the actionability of particular imputations and general statements of legal principle, it is possible to see how the legal standard of judgment gradually acquired a particular content, that being the traditional values of Christian morality. Section II addresses the quantitative dimension of diversity and it is suggested that the American ‘sectional standards’ test is to be preferred to the Anglo-Australian law that looks to the ‘general standards’ of the community. Section III moves to the substance of the views held in a jurisdiction. It looks at how qualitative distinctions have been drawn between different moral taxonomies to limit the legal protection of reputation in particular ways. Here, it is suggested that determinations of defamatory capacity depend upon processes of ‘ethical recognition’ of criteria for moral judgment.
Lawrence McNamara
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231454
- eISBN:
- 9780191710858
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231454.003.0001
- Subject:
- Law, Law of Obligations
This introductory chapter outlines the current legal framework and its shortcomings, and explains how the book uses reputation as the point of reference for analysing, evaluating, and proposing a ...
More
This introductory chapter outlines the current legal framework and its shortcomings, and explains how the book uses reputation as the point of reference for analysing, evaluating, and proposing a revision of the law that governs determinations of what is defamatory. In spite of the axiom that defamation law aims to protect reputation, the common law has no principled, theoretically coherent statement of law regarding what is defamatory. This is so because there has not been sufficient attention paid to the nature of reputation or to the relationship between reputation and defamation. Without a satisfactory account of reputation, the law that seeks to protect it is bound to be inadequately conceived. The question posed takes a very particular form, with the premise itself being a critical issue: if reputation is the interest to be protected by defamation law, then what should be the test(s) for what is defamatory?Less
This introductory chapter outlines the current legal framework and its shortcomings, and explains how the book uses reputation as the point of reference for analysing, evaluating, and proposing a revision of the law that governs determinations of what is defamatory. In spite of the axiom that defamation law aims to protect reputation, the common law has no principled, theoretically coherent statement of law regarding what is defamatory. This is so because there has not been sufficient attention paid to the nature of reputation or to the relationship between reputation and defamation. Without a satisfactory account of reputation, the law that seeks to protect it is bound to be inadequately conceived. The question posed takes a very particular form, with the premise itself being a critical issue: if reputation is the interest to be protected by defamation law, then what should be the test(s) for what is defamatory?
