Chapter 4: Applying the Test
INTRODUCTION The previous chapter searched, somewhat unsuccessfully, for a coherent statement of the test for defamation. The problem lies in two basic ambiguities. The ﬁrst is whether the law is realist or moralist, while the second relates to whether it is majoritarian or sectionalist. The purpose of this chapter is to examine not so much how judges have deﬁned the test, but how it has been applied in various reported decisions. This chapter acts as a bridge into Part II of the book, which reports the results of empirical ﬁeldwork into how the test is understood in practice. As a vehicle for that ﬁeldwork I used 15 imaginary media reports, 10 of which imputed an act or condition that seemed of particular relevance to the realism/moralism dyad. This chapter focuses on cases that relate to the acts or conditions imputed by my 10 hypothetical reports. Part II then examines the reactions to those reports of the judges and lawyers I interviewed, as well as those of the general public. I suggest that the cases that are most interesting to consider when addressing the moralist/realist debate fall into four rough categories: 1. Imputations relating to the relationship between legal and social norms What happens when these fail to coincide, so that the law or law enforcement lacks social support? Moralism can (but need not) be characterized as a means of imposing, through defamation law, unpopular norms onto a society whose values oppose the law’s. If that were so, we might...
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