Benjamin Bestgen

In Gulliver’s Travels, Jonathan Swift lets Captain Gulliver explain to the Houyhnhnms, a race of highly intelligent horses dedicated to reason and truth, that lawyers are: intrinsically corrupt, trained from the cradle in defending falsehood and will argue that white is black (or vice versa), according to what they are paid to argue. TV series like Shark, Damages or Better Call Saul portray lawyers as willing to lie and obfuscate in order to get the results they want, not always serving justice.

Outside of fiction, in Britain, Europe and many other stable jurisdictions with an independent judiciary, lawyers tend to be viewed as trustworthy, being under professional and legal obligations to act with honesty and integrity at all times.

As discussed previously, we expect truth in law and are justifiably upset about deceit, sharp practice and cover-ups. Most jurisdictions have laws that punish perjury, knowingly making false statements and actions or attempts which pervert the course of justice.

Outside of law, our relationship with lying is more complicated. Some lies are indeed serious manipulations and betrayals of trust. But we also “fib” about inconsequential things, tell “white lies” to save people from perceived embarrassment or hurt and “pro-social lies” to flatter or encourage others. We lie to portray ourselves in a better light, buy more time or think the person we lie to is not entitled to the whole truth. Psychologist Aldert Vrij notes that everybody lies and not all lies necessarily trouble us.

Indeed, the recent elections in UK or US demonstrated that a majority seems comfortable voting for presidents and prime ministers who are notorious liars, bullshitters (see below) and untrustworthy characters.

What’s a lie?

Unsurprisingly for lawyers and philosophers, there is no universally accepted definition. Dictionaries tend to define lying as “making a false statement with the intention to deceive”.

But is an intention to deceive necessary for statements being lies? In jurisdictions like the UK or US, where good faith is not a fundamental requirement in contractual negotiations, negotiators often deliberately misstate their initial bargaining positions and expect their counterpart to do likewise.

False statements meant ironically, in hyperbole or metaphors are not intended to deceive either. And utterances in totalitarian regimes, such as “The Party is always right” are also not meant to deceive, like polite excuses demanded by etiquette (“John is indisposed” as opposed to “He is too hungover to talk to you”). They are social code rather than lies.

Lies are also different from BS. Philosopher Harry Frankfurt proposed that while a liar cares about but attempts to hide the truth, a bullshitter doesn’t care about truth but only whether a listener is persuaded by his nonsense.

It is also unclear if silence can be a lie: In People v Meza (1987), a Californian court found Mr Meza guilty of perjury, as relevant law defined certain intentional nonverbal conduct as equivalent to making a statement. Mr Meza’s silence and failure to react to questions was taken as a negative statement.

The list goes on – does a liar have to know that his statement is false or merely believe that it is? Does a liar have to assert the truth of a statement before it becomes a lie or is a false statement without assertions of truthfulness enough? What about bluffing or “lies by omission” – assertions or conduct intended to deceive but not necessarily using false statements? And truthiness – statements claimed to be true based on gut-feeling, without evidence or recourse to facts, logic or scrutiny?

The smell of burning pants in the morning…

Humans are bad lie-detectors: even police, lawyers, psychologists or HR staff who pride themselves on having great “BS-radars” are statistically actually no better than chance. They just get lied to more often and are professionally incentivised to look for lies, which creates a false belief of being a better lie-detector than the average person.

Ultimately we depend on truthfulness and trust to navigate our society, not just the law. Lawyers in Scotland are trained to “tell it to clients like it is”, both as a professional duty and mark of respect for the people we serve. Respect for people and professionalism are also crucial for the art of government – but that’s a different subject entirely.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.