This is an argument from my side of the aisle, so to speak, that really upsets me. (Frank Rich, Dec. 13):

Blagojevich’s alleged crimes pale next to the larger scandals of Washington and Wall Street. Yet those who promoted and condoned the twin national catastrophes of reckless war in Iraq and reckless gambling in our markets have largely escaped the accountability that now seems to await the Chicago punk nabbed by the United States attorney, Patrick Fitzgerald.

The Republican partisans cheering Fitzgerald’s prosecution of a Democrat have forgotten his other red-letter case in this decade, his conviction of Scooter Libby, Dick Cheney’s chief of staff. Libby was far bigger prey. He was part of the White House Iraq Group, the task force of propagandists that sold an entire war to America on false pretenses. Because Libby was caught lying to a grand jury and federal prosecutors as well as to the public, he was sentenced to two and a half years in prison. But President Bush commuted the sentence before he served a day.

It is not against the law to lie to the public or to start a war on false pretenses. Because those acts are not illegal, Libby was not charged with them. He was not investigated for lying to the public; no evidence to that effect was ever put before a jury. No one examined him to see whether his assertions were (a) false and (b) knowingly so. He could not defend himself in court against an accusation of deliberately misleading the American people, because no such accusation was made. If, as Frank Rich apparently wishes, Libby was convicted because he lied to the public about a war, that was a flagrant violation of the rule of law, one of whose fundamental principles is nullum crimen et nulla poena sine lege (“no crime and no punishment without a law”).

Having gotten that off my chest, I’d like to raise a more theoretical question: Would it make any sense to create a criminal law against lying to the public? The elements of this crime would have to include intent and serious consequences. In other words, it would be a defense to say that you didn’t know your information was wrong; and it would be a defense to say that your lie was inconsequential. The law could govern any public utterance, or only certain contexts, such as formal speeches given by high officials. We already have perjury laws that apply to sworn testimony; these would be broadened. Another precedent is the Oregon law that says that candidates’ personal statements in state voter guides must be true. Former Congressman Wes Cooley was convicted of falsely claiming that he had served in the Special Forces.

In favor of this reform: Lying is wrong. It can cause serious harm to other people. Lying by public officials can undermine the public’s sovereignty by giving citizens false information to use in making judgments. Although it can be challenging to prove intent, that is certainly possible in some circumstances, as we know from perjury trials.

Against: There could be a chilling effect on free speech, because people who participate in heated debates do occasionally stray from the truth. It would be bad to suppress such debates altogether. Also, criminalizing lying would shift power from the legislative and executive branches to the judiciary, which might therefore become even more “political.” The reform might reduce the public’s sense that we are responsible for scrutinizing our government’s statements and actions and punishing bad behavior at the ballot box.

Finally, it would distort the political debate if there were frequent, high-stakes battles over whether individuals had knowingly lied about specific facts. Often a specific prevarication is not nearly as important as someone’s bad values and priorities. For instance, the Bush Administration very publicly and openly denigrated the importance of foreigners’ human rights and chose an aggressive and bellicose strategy. These were not lies; they were public choices that unfortunately happened to be quite popular.

This is one of several recent posts in which I struggle with definitions of the word “love” as a way of thinking about how we define moral concepts, generally. Here I borrow the idea of “family-resemblance” from the later Wittgenstein. Sometimes, we recognize that people belong to a family, not because they all have one feature in common, but because each individual looks like many of his or her relatives in many ways. Maybe eight out of twelve family members have similar noses; a different six out of the twelve have the same color hair; and a yet another seven have the same chin. Then they all resemble each other, although there is no (non-trivial) common denominator. Wittgenstein argued that some–although not all–perfectly useful words are like this. They name sets of objects that resemble one another; but members of each set do not share any defining feature. Their resemblance is a statistical clustering, a greater-than-random tendency to share multiple traits.

A good example is “curry,” which the dictionary defines as a dish flavored with several ground spices. The word “curry” thus describes innumerable individual cases, where each one resembles many of the rest, but there is no single ingredient or other characteristic that they all share. Nor is there a clear boundary between curry and other dishes. Is bouillabaisse a curry? Clearly not, although the dictionary’s definition applies to it. Indeed, any definition will prove inadequate, yet we can learn to recognize a curry and distinguish it from other kinds of food. If we want to teach someone how to use the word “curry,” we will serve several particular examples and also perhaps some dishes that are not curries. If the student draws the conclusion that a curry must always contain coriander, or must be soupy, or must be served over rice, then we can serve another curry that meets none of these criteria. Gradually, he will learn to use the word. Even sophisticates will debate about borderline cases, but that is the nature of such concepts. Their lack of definition does not make them useless.

It seems to me that “love” is also a family-resemblance word, because there is no common denominator to love for ice cream, love for a newborn baby, love of country, brotherly love for humanity, self-love, tough love, Platonic love, making love, amor fati, philately, etc. Some (but not all) of these forms of “love” involve a high regard for the object. Some (but not all) imply a commitment to care for the object. Some (but not all) signify an intense emotional state. Dictionaries cope by providing numerous definitions of love, thus suggesting that “love” means “lust” or “enthusiasm” or “adoration” or “agape” or “loyalty.” But “love” never quite means the same as any of these other words, because we faintly recognize all of its other meanings whenever it is used in a particular way. For instance, “love” is always different from “lust,” just because the former word can mean loyal adoration as well as sexual desire.

The experience of love is complex because one has usually loved before in several different ways and has seen, heard, or read many descriptions of other loves; and these past examples and descriptions become part of one’s present experience. “Love” is a family-resemblance word that brings its family along when it visits.

When we read a literary work that vividly describes an example of love, it changes our experience of the concept. Any philosophical discussion of “love” must be a discussion of the experience; and therefore what we conclude philosophically must depend (in part) on how love has been portrayed for us in the arts. (Cf. Tzachi Zamir, Double Vision: Moral Philosophy and Shakespearean Drama, p. 127).

Yesterday morning, the speechwriter and columnist Peggy Noonan published a piece in the Wall Street Journal arguing that Sarah Palin was a great choice for vice president: potentially a “transformative political presence.” Later the same day, she was recorded saying that Palin was not the best qualified person and was chosen because of “political bullshit about narratives and youthfulness.”

What’s wrong with this? Perhaps it’s evidence of a lie. In the morning, Noonan published a proposition about her own feelings toward Palin. In the afternoon, she said a different proposition about her own feelings. If the two claims were contradictory, then she lied unless she changed her mind. But I’m not sure they’re flatly contradictory, since the original column was at least somewhat conflicted: Palin, she wrote, “is either going to be brilliant and groundbreaking, or will soon be the target of unattributed quotes by bitter staffers shifting blame in all the Making of the President 2008 books.” I think that’s compatible with saying that Palin was chosen for a foolish reason. Noonan could be hopeful about Palin, yet suspicious of the reasons she was chosen. In short, the case for a lie seems weak to me.

Instead of treating Noonan’s private remarks as evidence of mendacity, we could accuse her of violating Kant’s principle of publicity: “All actions relating to the right of other human beings are wrong if their maxim is incompatible with publicity.” The idea is that one can test the rightness of an action by asking whether the actor’s private reason for so acting could be made public. If you cannot disclose the reason you have done P, you should not do P. Peggy Noonan’s private remarks suggest that she thought Palin was probably a bad choice. But she could not say that in the Wall Street Journal without hurting the Republican ticket and costing herself powerful friends. So she shouldn’t have written her Wall Street Journal column, according to at least one interpretation of Kant.

The publicity principle can seem over-demanding. Does it mean that one cannot mutter something to one’s spouse unless one would also announce it in an office meeting? The glare of publicity can expunge the safe shadows of a private or personal life. That thought gives me a little sympathy for public figures like Peggy Noonan who are caught on tape being frank with friends. (Jesse Jackson and many others have done the same.) But Kant offered his publicity principle in a book about politics (Perpetual Peace), and he qualified it by limiting it to “actions relating to the right of other human beings.” In other words, it applies to willing participants in the world of power, law, and politics–not to private individuals. By writing a column in the Wall Street Journal, Noonan committed herself to a public role. The implied promise to her readers was that she was acting transparently and sincerely in that public arena. If her private remarks show otherwise, then she violated Kant’s publicity principle.