A recent post by Eugene Volokh describes a legal case which hinges on a rule of libel law that most people are likely unaware of:

“It has long been the law of Pennsylvania that statements made by judges, attorneys, witnesses and parties in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation.”

Volokh makes no comment of his own regarding the merits of this rule, but I have seen a devastating comment on rules of that sort, made by Thomas Babington Macaulay in his Notes on the Indian Penal Code. The setting is not quite the same, but it’s close enough:

… the crime of deliberately and knowingly asserting falsehoods in pleading. Our opinions on this subject may startle persons accustomed to that boundless license which the English law allows to mendacity in suitors. On what principle that license is allowed we must confess ourselves unable to discover. A. lends Z. money; Z repays it. A. brings an action against Z. for the money, and affirms in his declaration that he lent the money, and has never been repaid. On the trial A.’s receipt is produced. It is not doubted. A. himself cannot deny that he asserted a falsehood in his declaration. Ought A. to enjoy impunity? Again: Z. brings an action against A. for a debt which is really due. A.’s plea is a positive averment that he owes Z. nothing. The case comes to trial; and it is proved by overwhelming evidence that the debt is a just debt. A. does not even attempt a defence. Ought A. in this case to enjoy impunity? If, in either of the cases which we have stated, A. were to suborn witnesses to support the lie which he has put on the pleadings, every one of these witnesses, as well as A. himself, would be liable to severe punishment. But false evidence in the vast majority of cases springs out of false pleading, and would be almost entirely banished from the Courts if false pleading could be prevented.

It appears to us that all the marks which indicate that an act is a proper subject for legal punishment meet in the act of false pleading. That false pleading always does some harm is plain. Even when it is not followed up by false evidence it always delays justice. That false pleading produces any compensating good to atone for this harm has never, as far as we know, been even alleged. That false pleading will be more common if it is unpunished than if it is punished appears as certain as that rape, theft, embezzlement, would, if unpunished, be more common than they now are. It is evident also that there will be no more difficulty in trying a charge of false pleading than in trying a charge of false evidence. The fact that a statement has been made in pleading will generally be more clearly proved than the fact that a statement has been made in evidence. The falsehood of a statement made in pleading will be proved in exactly the same manner in which the falsehood of a statement made in evidence is proved. Whether the accused person knew that he was pleading falsely, the Courts will determine on the same evidence on which they now determine whether a witness knew that he was giving false testimony.

We have as yet spoken only of the direct injury produced to honest litigants by false pleading. But this injury appears to us to be only a part, and perhaps not the greatest part, of the evil engendered by the practice. If there be any place where truth ought to be held in peculiar honour, from which falsehoods ought to be driven with peculiar severity, in which exaggerations, which elsewhere would be applauded as the innocent sport of the fancy, or pardoned as the natural effect of excited passion, ought to be discouraged, that place is a Court of Justice. We object, therefore, to the use of legal fictions, even when the meaning of those fictions is generally understood, and we have done our best to exclude them from this code. But that a person should come before a Court, should tell that Court premeditated and circumstantial lies for the purpose of preventing or postponing the settlement of a just demand, and that by doing so he should incur no punishment whatever, seems to us to be a state of things to which nothing but habit could reconcile wise and virtuous men. Public opinion is vitiated by the vicious state of the law. Men who, in any other circumstances, would shrink from falsehood, have no scruple about setting up false pleas against just demands. There is one place, and only one, where deliberate untruths, told with the intent to injure, are not considered discreditable, and that place is a Court of Justice. Thus the authority of the tribunals operates to lower the standard of morality, and to diminish the exteem in which veracity is held; and the very place which ought to be kept sacred from misrepresentations, such as would elsewhere be venial, becomes the only place where it is considered as idle scrupulosity to shrink from deliberate falsehood.