No Redress for your Lost Honor

In The Rule of the Clan, Mark Weiner points out that in moving from Status to Contract, from the rule of the clan to the rule of law, courts replace clans as adjudicators of disputes and providers of redress when lives, limbs, or property are taken. However, in many cases this passage implies not only a transformation in the channels of redress but also in its content –or, rather, on whether redress is deserved at all.

There is a particular right whose significance is substantially diminished in this process, namely, the right to honor (sometimes referred to as the right to reputation or to dignity, which can also mean something different). This right occupies an important place in many constitutional systems in Europe and Latin America, as well as in international human rights covenants (e.g., Universal Declaration of Human Rights, article 12; American Convention on Human Rights, article 11). (I tend to think that in the U.S., honor, as such, is protected at the state level, e.g. by laws prohibiting libel, not at the federal constitutional level; but perhaps I am missing something).

In essence, your right to honor is affected if someone lies about you or insults you. To redress such attacks, civil or criminal remedies may follow. However, remedies addressing injury to honor have tended to shrink in the last decades, especially when opposite to honor is freedom of speech, as it is often the case. Thus, the doctrine of actual malice laid down by the US Supreme Court in New York Times vs. Sullivan reduces significantly your chances to recover if you are a public person whose honor was attacked by a non-malicious newspaper. Similarly, international bodies insist that criminal laws prohibiting libel should be repealed in the name of freedom of speech. In Argentina, a few years ago, the Supreme Court adopted the NY Times doctrine and followed the international advice to eliminate criminal liability for libel.

Whereas, as Mark Weiner explains, traditional organizations such as clans find honor to be a central value worth your life, in more liberal settings the trend I have noted seems to mark the decline of honor as a value worthy of legal protection. However, the decline of the right to honor is not straightforward or universal. Could one take the level of protection of the right to honor vis a vis the right to free speech (a paradigmatically liberal right) as a proxy of the prevalence in a given society of more traditional values once related to life in a clan? Is the reduction of the legal protection to honor the result of a cultural shift, or rather an anticipation of such shift? Or, if the causal relationship between law and culture is multi-directional, could it be both? These are questions for legal historians and sociologists, among which I cannot count myself; as an amateur, I can speculate, though, and Mark, I am sure, can take it from here.


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