When Information Is Omitted in an Argument, Is It Always Done With the Intent to Deceive?
Lessig gets at the idea that, when a person borrows an idea, no harm is done to the party from whom it was taken. But what about loss in revenues as a form of harm? Surely there is no loss of revenues when a student plagiarizes a paper. From Lessig’s metaphor we can see that theft, and even copyright infringement, are not entirely apt ways to think about plagiarism. But Lessig’s metaphor does not help us understand that, in academic writing, acknowledgment of sources is highly valued. Neither does it reveal that taking ideas and using them in your own writing, with conventional attribution, is a sophisticated skill that requires a good deal of practice to master.
An important moral category—dishonest speech—has been overlooked in theoretical ethics despite its importance in legal, political, and everyday social exchanges. Discussion in this area has instead been fixated on a binary debate over the contrast between lying and ‘merely misleading’ (that is, attempting to deceive someone without uttering a literal falsehood). Some see lying as a distinctive wrong; others see it as morally equivalent to deliberately omitting relevant truths, falsely insinuating, or any other species of attempted verbal deception. Parties to this debate have missed the relevance to their disagreement of the notion of communicative dishonesty. Communicative dishonesty need not take the form of a lie, yet its wrongness does not reduce to the wrongness of seeking to deceive. This paper therefore proposes a major shift of attention away from the lying/misleading debate and towards the topic of communicative dishonesty (or ‘dishonesty’ for short). Dishonesty is not a simple notion to define, however. It presupposes a difficult distinction between what is and is not expressed in a given utterance. This differs from the more familiar distinction between what is and is not said, the distinction at the heart of the lying/misleading debate. This paper uses an idea central to speech act theory to characterize dishonesty in terms of the utterer’s communicative intentions, and applies the resulting definition to a variety of contexts. English has an impressive array of phrases to describe speech intended to cause or sustain false belief, including ‘duplicitous’, ‘disingenuous’, ‘deceptive’, ‘insincere’, ‘mendacious’, ‘misleading’, ‘dissembling’, ‘lying’, and more. Which to use is often a merely stylistic matter, but behind this flexibility are distinctions with genuine ethical significance. My goal here is to reveal the importance of a category of wrong that has been overlooked in theoretical ethics, camouflaged in part by this terminological forest but also by the complexity of the terrain itself. I call this category communicative dishonesty (or ‘dishonesty’ for short), and argue that it should be incorporated into the core repertoire of concepts we draw on when discussing verbal probity. In sum, Shiffrin has failed to establish that lying is a significant moral category, distinct from instances of duplicitous speech that trade on insinuation and the like. On the other hand, she and others in the same tradition have shown that there is more to the wrongness of lying than deliberate deception. Lying can also be wrong because it abuses the social practice of communicating by linguistic exchange. Her only mistake is to assume that this holds only of lying. The moral kind she brings into relief occupies a wider conceptual space. This is the space I propose we fill with the notion of dishonesty. Dishonest acts will include lies, though not only lies; but the notion will not be so broad as to include all acts of attempted verbal deception, since not all verbal deception incorporates an abuse of linguistic exchange. That, at least, will be the claim in Sect. 2, the function of which is to properly elucidate this new notion.
There is no statement condition for deception. In addition to deceiving by means of lying, it is possible to deceive using natural or causal signs (indices), such as packing a bag as though one were going on a holiday, in order to catch a thief (Kant 1997, 202). It is possible to deceive by using signs that work by resemblance (icons), for example by posting a smiley face emoticon about a news item that one is actually unhappy about. Finally, it is possible to deceive by non-linguistic conventional signs (symbols), such as wearing a wedding ring when one is not married, or wearing a police uniform when one is not a police officer. It is also possible for a person to deceive by cursing, making an interjection or an exclamation, issuing a command or an exhortation, asking a question, saying “Hello,” and so forth. It is also possible to deceive by omitting to make certain statements, or by remaining silent. There is also no untruthfulness condition for deception. It is possible to deceive by making a truthful and true statement that intentionally implies a falsehood. It is also possible to deceive using truthful statements that are not assertions, such as jokes, ironic statements, and even the lines of a play delivered on stage, so long as the intention to deceive can be formed. If, for example, I am asked if I stole the money, and I reply in an ironic tone, “Yeah, right, of course I did,” when I did steal the money, intending that I be believed to have not stolen the money, and if I am believed, then I have deceived using a truthful statement (it is unclear if such cases of “telling the truth falsely” (Frank 2009, 57) are to be considered as cases of paltering). According to Saul, it is not possible to lie if one does not believe that one is in a warranting context. Saul considers the case of a putative lie told in a totalitarian state: “This is the case of utterances demanded by a totalitarian state. These utterances of sentences supporting the state are made by people who don’t believe them, to people who don’t believe them. Everyone knows that false things are being said, and that they are only being said only because they are required by the state. […] It seems somewhat reasonable to suggest that, since everyone is forced to make these false utterances, and everyone knows they are false, they cease to be genuine lies”.
In any event, all patent litigators need to be aware of such fact patterns and, more importantly, must stay focused on the proper intent — the intent to deceive. A patentee’s mere proof of supposed “good faith” as to some other related issue (such as belief in patentability) does the patentee no good in the face of deceptive intent because “there is no such thing as a good faith intent to deceive.”
Frank, M. G., 2009. ‘Thoughts, Feelings, and Deception,’ in B. Harrington, (ed.), Deception: From Ancient Empires to Internet Dating, Stanford: Stanford University Press, 55–73.
Kant, I., Groundwork of the Metaphysics of Morals, The Metaphysics of Morals, and On a supposed right to lie from philanthropy, M. J. Gregor (trans.), in Immanuel Kant, Practical Philosophy, A. W. Wood and M. J. Gregor (eds.), Cambridge: Cambridge University Press, 1996.
Constant, B., 1964. Des réactions politiques, in O. P. di Borgo (ed.), Écrits et discours politiques, Paris: Pauvert.
Davidson, D., 1980. ‘Deception and Division,’ in J. Elster (ed.), The Multiple Self, Cambridge: Cambridge University Press, 79–92