09 April 2010

The confidentiality of a confession

The confidentiality of a confession requires that the confessing party keep his voice down. The priest won't rat you out, but anyone else passing by is free to do as they please with what they hear!

As a matter of history, even Jeremy Bentham believed the law ought to recognize priest-penitent privilege. He had no sympathy for the Catholic Church, and he was generally against privileges. Nonetheless: Bentham wrote, in "View of the Rationale of Evidence," that though the government of a rational society will be happy to see Catholicism fade away, it will not use coercion against it, and that the imprisonment of priests for refusing to share confessions would be precisely that.

He also said that the presence of a "spiritual guide and comforter" for persons who are so misguided as to go to a Roman Catholic priest to confess, is a good thing, tending to the prevention of future crimes, and to "the disposing of the penitent to make reparations for mischief done by misdeeds already perpetrated." This benefit would be lost were the evidentiary privilege not extended.

Bentham, interestingly, had no use for the institution of a lawyer-client privilege, which has no such positives in the utilitarian balance.


Henry said...

It seems to follow that Bentham would not favor the right against self-incrimination, because to force a lawyer to testify as to what his client told him is only a step removed from forcing the client to testify against himself. Do you have a citation (preferably a link) to Bentham's views on attorney-client privilege or the right of self-incrimination?

Christopher said...


Bentham's works are preserved as part of the Online Library of Liberty (OLL) a project of The LibertyFund.


You might go there, then use the search engine on that site to enter the phrase "View of the Rationale of Evidence".

The full name of the book in question, BTW, is "An Introductory View of the Rationale of Evidence, for the Use of Non-Lawyers as well as Lawyers."

Once you get that book up on the site, scroll down to Chapter 20: "Exclusion Continued -- Causes for Which It is Proper or Not, According to Circumstances"

(Yes, concise titles weren't an ideal for JB.) Click there to get the chapter, then scroll to section 6, "Evidence that ought to be exacted -- Client's Communications."

Or, if I've done this right, you can save yourself some steps and just click on the words "of Evidence" above.

Knowledge is warranted belief -- it is the body of belief that we build up because, while living in this world, we've developed good reasons for believing it. What we know, then, is what works -- and it is, necessarily, what has worked for us, each of us individually, as a first approximation. For my other blog, on the struggles for control in the corporate suites, see www.proxypartisans.blogspot.com.