Lawrence M. Friedman, Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy. Palo Alto: Stanford University Press, 2007. Pp. 360. $29.95.
Lawrence Friedman's Guarding Life's Dark Secrets is a fascinating and important contribution to the history of legal ideas and to our understandings of the development of the law regulating privacy, reputation, and indecent activity. Friedman weaves for us a nuanced and compelling tale of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. Dark Secrets undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic - a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman's social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.
Friedman's dual purpose in Dark Secretsis to explain the Victorian Compromise and what it represented, and to tell the complicated story of its decline and ultimate abandonment over the course of the twentieth century. The first half of the book describes the Compromise at its height in the late nineteenth century and consists of a series of chapters demonstrating how the Compromise was reflected in a myriad of common law doctrines regulating reputation and privacy. In these chapters, Friedman argues that the Compromise had two principal components. On the one hand, the Compromise was the legal embodiment of a theory of social morality, particularly for the upper classes. Many of the legal doctrines that constituted the Victorian Compromise dealt with matters of sex, vice, and other personal habits. Thus, libel and slander protected reputation from lies, the doctrines of seduction and breach of promise gave special protection to the honor of women in sexual matters, and obscenity law kept public discourse at an appropriately prudish level. But on the other hand, although the law forbade certain instances of 'immoral' conduct, it also recognized that such conduct was inevitable, and sought to shield these slippages from the bright-line standards demanded by conventional morality. Protection of slippages seemed particularly important for "pillars of society," particularly upper-class men. For instance, Friedman argues that blackmail law should be understood as protecting upper-class men against threats by lower-class blackmailers when those elite men strayed from the demanding standards of morality and respectability.
Neil M. Richards,
Privacy and the Limits of History,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol21/iss1/4