Adam Smith on reputation, commutative justice, and defamation laws

Abstract

We interpret Adam Smith on reputation, commutative justice, and defamation laws. We address two major questions. The first question concerns whether Smith thought that “one's own” as covered by commutative justice included one's reputation. Several passages point to the affirmative. But reputation is left out of Smith's “most sacred laws” description of commutative justice. Most importantly, so much of reputation—e.g., “Steve's work stinks”—does not fit Smith's description of commutative justice's rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” reputation, and suggests that the “reputation” that sometimes appears in Smith's characterizations of “one's own” is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice's three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice, though not a staple, belongs to the penumbra around the three staples, just as incitement and endangerment belong to that penumbra. We also recruit Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second question is: Did Smith favor defamation laws (libel, slander) that reached beyond simple reputation, so as to cover some intensive-reputation detraction? Were Smith to favor intensive-reputation defamation laws (against, say, “Steve's work stinks”), we would have to count that as another exception made to the liberty principle. Smith's remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) We also suggest that if Smith thought that wantonly telling malicious lies like “Steve's work stinks” was not in violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project's great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.