Practice to deceive: A natural history of the legal bluff
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Laurence Horn
Abstract
After centuries of exploration, the territory between falsehood and truth remains imperfectly mapped. Among cartographers of the forensically complex and ethically dubious domain of intentional deception there is widespread recognition of the importance of the practice of bluffing but no unanimity concerning its nature. Standard treatments of the relationship between bluffing and lying by philosophers, legal scholars, and specialists in business ethics, while addressing a range of subtle yet significant distinctions in the criteria for lying, provide no definitive analysis. I address this gap here, touching along the way on the relation of bluffing to deception, false implicature, bullshit, puffery, fraud, and the literal truth defense. What distinguishes bluffing from other varieties of misrepresentation and misdirection is the perpetrator’s inherent vulnerability to being called by the target of the bluff; when called, a bluff collapses. But the potential bluffee - in the courtroom or hearing room, at the negotiating table or the card table, on the field of battle or the campaign trail, in the wild - is vulnerable as well, since apparent bluffs may conceal actual knowledge or power. Consequences for victims of a successful bluff, or for those lured into injudiciously calling a non-bluff, can range from an unsatisfactory settlement or wrongful conviction (or acquittal) to bankruptcy, military defeat, or death.
Abstract
After centuries of exploration, the territory between falsehood and truth remains imperfectly mapped. Among cartographers of the forensically complex and ethically dubious domain of intentional deception there is widespread recognition of the importance of the practice of bluffing but no unanimity concerning its nature. Standard treatments of the relationship between bluffing and lying by philosophers, legal scholars, and specialists in business ethics, while addressing a range of subtle yet significant distinctions in the criteria for lying, provide no definitive analysis. I address this gap here, touching along the way on the relation of bluffing to deception, false implicature, bullshit, puffery, fraud, and the literal truth defense. What distinguishes bluffing from other varieties of misrepresentation and misdirection is the perpetrator’s inherent vulnerability to being called by the target of the bluff; when called, a bluff collapses. But the potential bluffee - in the courtroom or hearing room, at the negotiating table or the card table, on the field of battle or the campaign trail, in the wild - is vulnerable as well, since apparent bluffs may conceal actual knowledge or power. Consequences for victims of a successful bluff, or for those lured into injudiciously calling a non-bluff, can range from an unsatisfactory settlement or wrongful conviction (or acquittal) to bankruptcy, military defeat, or death.
Chapters in this book
- Frontmatter I
- Contents VII
- Introduction: On lying and disleading 1
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I Lies and deception: The landscape of falsehood
- Lying, deception, and related concepts: A conceptual map for ethics 15
- The morality of deception 41
- Kant tell an a priori lie 65
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II Lying, deception, and speaker commitment: Empirical evidence
- Is lying morally different from misleading? An empirical investigation 89
- “I was only quoting”: Shifting viewpoint and speaker commitment 113
- Memefying deception and deceptive memefication: Multimodal deception on social media 139
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III Puffery, bluffery, bullshit: How to not quite lie
- Bald-faced bullshit and authoritarian political speech: Making sense of Johnson and Trump 165
- Practice to deceive: A natural history of the legal bluff 195
- Just saying, just kidding: Liability for accountability-avoiding speech in ordinary conversation, politics and law 227
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IV Crossing the perjury threshold: Deceit and falsehood in the courtroom
- Perjury cases and the linguist 261
- Trickery and deceit: How the pragmatics of interrogation leads innocent people to confess – and factfinders to believe their confessions 289
- The context of mistrust: Perjury ascriptions in the courtroom 309
- What counts as a lie in and out of the courtroom? The effect of discourse genre on lie judgments 353
- Lies, deception, and bullshit in law 381
- Index 409
Chapters in this book
- Frontmatter I
- Contents VII
- Introduction: On lying and disleading 1
-
I Lies and deception: The landscape of falsehood
- Lying, deception, and related concepts: A conceptual map for ethics 15
- The morality of deception 41
- Kant tell an a priori lie 65
-
II Lying, deception, and speaker commitment: Empirical evidence
- Is lying morally different from misleading? An empirical investigation 89
- “I was only quoting”: Shifting viewpoint and speaker commitment 113
- Memefying deception and deceptive memefication: Multimodal deception on social media 139
-
III Puffery, bluffery, bullshit: How to not quite lie
- Bald-faced bullshit and authoritarian political speech: Making sense of Johnson and Trump 165
- Practice to deceive: A natural history of the legal bluff 195
- Just saying, just kidding: Liability for accountability-avoiding speech in ordinary conversation, politics and law 227
-
IV Crossing the perjury threshold: Deceit and falsehood in the courtroom
- Perjury cases and the linguist 261
- Trickery and deceit: How the pragmatics of interrogation leads innocent people to confess – and factfinders to believe their confessions 289
- The context of mistrust: Perjury ascriptions in the courtroom 309
- What counts as a lie in and out of the courtroom? The effect of discourse genre on lie judgments 353
- Lies, deception, and bullshit in law 381
- Index 409
