Academic journal article Michigan Law Review

Property, Duress, and Consensual Relationships

Academic journal article Michigan Law Review

Property, Duress, and Consensual Relationships

Article excerpt


SPEECH MATTERS: ON LYING, MORALITY, AND THE LAW. By Seana Valentine Shiffrin. Princeton and Oxford: Princeton University Press. 2014. Pp. xi, 223. $35.


Professor Seana Valentine Shiffrin1 has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin's previous rigorous, careful, and morally sensitive work spans contract law,2 intellectual property,3 and the freedoms of association4 and expression.5 Speech Matters is in line with Shiffrin's signature move: we ought to reform our social practices and legal and political institutions to, in various ways, address or accommodate moral values-here, a stringent moral prohibition against lying, a strident principle of promissory fidelity, that is, the principle that one ought to keep one's promises, and the general value of veracity.

The book grows out of Shiffrin's Hempel Lectures at Princeton University and honorary lectures she has given at Cornell and New York Universities. Shiffrin cotaught a seminar with the late Professor Ronald Dworkin, which discussed a prepublication draftof the book (pp. ix-x). The volume is organized into six essentially independent chapters or lectures. Chapters One, Two, and Six began as independent, stand-alone lectures; Shiffrin crafted Chapters Three, Four, and Five to further expand on the arguments of One and Six (p. 4).

While the volume bears a unifying theme, Shiffrin intended the chapters to retain their independence as distinct lectures, and she welcomes readers to delve into the chapters independently of one another (p. 4). Speech Matters is, at its core, a rich discussion of moral agency and the normative values of sincerity, truth telling, promissory fidelity, and the effect they ought to bear on personal and social relations, and political and legal institutions. This Review brings forward this unifying theme and provides a critical appraisal, contrasting Shiffrin's stridently Kantian approach with an alternative foundationally deontic, if less severe, distributive approach.


A. Channels to Communication

Shiffrin is concerned with "moral agency" (p. 1). It is not only social cooperation and human flourishing, but moral agency itself that requires a fragile domain of sincerity and trust. This domain, Speech Matters holds, requires an extraordinarily stringent social and legal prohibition against lying and the protection of fidelity (pp. 2, 26). "The means of successful communication are crucial . . . mechanisms for the most valuable human endeavors-from establishing and conducting personal relationships, to engaging in cooperative activities . . . ." (p. 25). Shiffrin argues that "[p]reserving and protecting these means therefore figure among our fundamental moral priorities" (p. 25). But Speech Matters's unique and somewhat counterintuitive claim is that a failure to recognize an extraordinarily stringent- indeed nearly absolute-prohibition on lying,6 "precludes . . . moral relations . . . by obstructing the sort of mutual understanding[s] . . . based on rational communication."7 That failure thereby obstructs the channels required for moral progress and the sorts of mutual engagement, which serve as the precondition to giving normative effect to our social practices and legal and political institutions.8

Given the focus on pathways to communication, one may feel tempted-indeed invited-to conclude that Shiffrin offers a straightforward consequentialist or outcome-oriented account of the freedom of speech; after all, her view plainly involves "delving into the moral purposes and value of communication" and seemingly justifies the value of open channels of communication in consequentialist terms (p. 26). Yet Shiffrin is clear: she aims at a view that is not "render[ed] . . . consequentialist."9 To understand the normative foundations of communication, it is essential to consider communication's normative relationship to moral agency. …

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