ISSN 1393-614X Minerva - An Internet Journal of
Philosophy Vol. 9 2005.
____________________________________________________
Feminism,
Democracy and the Right to Privacy
Annabelle Lever |
Abstract
This article argues
that people have legitimate interests in privacy that deserve legal protection
on democratic principles. It describes the right to privacy as a bundle of
rights of solitude, intimacy and confidentiality and shows that, so described,
people have legitimate interests in privacy. These interests are both personal
and political, and provide the grounds for two different justifications of
privacy rights. Though both are based on democratic concerns for the freedom
and equality of individuals, these two justifications for privacy can be
distinguished because the one is principally concerned with protecting the
personal freedom and equality of individuals, while the other is principally
concerned with their political equivalents. Feminists have often been
ambivalent about legal protection for privacy, because privacy rights have, so
often, protected the coercion and exploitation of women, and made it difficult
to politicise personal forms of injustice. However, interpreting the content
and justification of privacy rights in light of the differences between
democratic and undemocratic forms of politics can enable us to meet these
concerns, and to distinguish a democratic justification of privacy rights from
the alternatives.
Can legal rights to privacy be reconciled with democratic principles of
government? Although many people believe that the right to privacy is an
important democratic right, privacy rights have been accused of justifying and
perpetuating sexual inequality and, to date, we lack a persuasive account of
the relationship between privacy rights and the political rights of individuals
in a democracy. Indeed, given feminist criticisms of the right to privacy, it
is an open question whether or not it is possible to justify legal rights to
privacy on democratic grounds.
This paper claims that it is
possible to provide a democratic justification for privacy rights, but only if
we take seriously, and seek to accommodate, feminist criticisms of the right to
privacy. To do so, it shows, we must revise standard liberal justifications of
privacy rights in light of republican insights into the value of political
participation. But to reconcile privacy rights with democratic government, we
must also draw on the strengths of liberal political thought, in order to
remedy the overestimation of political ends, relative to all others,
characteristic of republican ideas. Both steps, I argue, are justified by
feminist critiques of the public/private distinction, and illuminate the
importance of liberal and republican ideals to democratic theory and practice.
Liberalism and republicanism
are distinctive ways of analyzing and practicing politics, even though there
are many varieties of each, and neither has grown up in isolation from the
other, or from alternatives like utilitarianism or marxism. While their internal
variety means that they come in more or less democratic versions, I will
largely be concerned with the ways in which they each tend to justify sexual
inequality and undemocratic forms of power and privilege. In this way, I hope
to illuminate feminist concerns with the right to privacy and, by relating them
to the distinctive characteristics of liberal and republican thought, broadly
construed, will show how we might reinterpret the right to privacy along more
democratic lines.
For instance, what
distinguishes liberalism, as a political tradition, is a tendency to identify
the freedom, equality and happiness of individuals with the absence of state
scrutiny and regulation. (Gutmann 1996, 64-68). But women, like other
disadvantaged social groups, will often need state aid in order to achieve the
freedom and equality promised by their legal rights. In so far as privacy
rights prevent the state from altering the balance of power between men and women,
therefore, they will perpetuate sexual inequality and undemocratic government
in ways that are typically liberal (MacKinnon 1983, ch. 8).
By contrast, republican
political thought is associated with the idea that the freedom consists in
self-government, and is threatened not just by foreign domination but by any
needs, desires and beliefs that interfere with our capacities for active
citizenship and identification with the common good (Pocock 1975). Not
surprisingly, this is a political perspective that treats privacy with some
suspicion, however natural or necessary it may be. Yet Virginia Woolf is not
alone in believing that women need privacy to be the equals of men, and that
their lack of privacy is, itself, a mark of their status as subordinates (Woolf
1929). So if an unduly sanguine approach to privacy can lead to characteristic
justifications of inequality and coercion, reluctance to recognize the
legitimacy of individuals’ claims to privacy may also lead to recognizable
patterns of subordination.
That, at least, is the hunch
that this paper explores in the hope that feminist critiques of these two
vibrant, influential and contrasting approaches to politics can illuminate the
democratic potential of privacy. Thus, I will start by reviewing feminist
critiques of the public/private distinction, in order to show why a democratic
interpretation of privacy requires us to revise typical features of both
liberal and republican views of politics, before turning to the justification
of privacy rights, themselves, and the ways in which they can reflect, and
build upon, a democratic conception of politics.
It might be helpful to note, at the outset, that I take democratic principles to require freedom for all adults, as this is generally understood, to vote and stand for election to positions of civil and political responsibility. They also require them to have access to the education and other resources necessary to participate in civil and political life freely and as each other's equals. Though I do not suppose that this requires strict
equality of resources and opportunities, I assume that it sets fairly stringent
limits to socio-economic inequality, although what these are, and how stringent
they should be, are all well-known matters of controversy. Beyond that, I
assume that the standard civil and political freedoms are required, in order to
ensure that government is by the people, for the people.
The public/private
distinction is meant to mark the legitimate limits of state action, although it
can serve other purposes as well. (Weintraub and Kumar 1997, ch. 1). But that
distinction feminists often fear, is impossible to reconcile with the equality
of men and women – or with principles of democratic government.1 Indeed,
the feminist slogan that the personal is political neatly encapsulates both the
theoretical problem of conceptualising the public/private distinction in
democratic terms, and the practical results of our failures to do so.
The slogan that the personal is political was a protest against sexual injustice and a challenge to the main obstacles to removing it which feminists had encountered. It was a protest against the violence, exploitation and humiliation that characterised so much of women’s lives not only in the workplace, or as members of political organisations and movements, but in the home and, more broadly, in their sexual and domestic relations with men. It was a protest, in other words, against practices quite common in the 1960s and 1970s – such as the exclusion of women from the professions, and from higher education, or the difficulties that they encountered if they wished to set up a bank account in their own name, and to get paid adequately for work that they had done. It was, as well, a protest against the difficulties that they faced if they wished to delay or even forego, marriage and child-bearing, and the high price that was demanded of them if they did so in social exclusion, ostracism, harassment and intimidation.2
But the slogan that the
personal is political was, as well, a way of encapsulating women’s insights
into the ways that these practices had been justified in the past, and into the
obstacles to overcoming them in the present. For it neatly and accurately
summarised the idea not only that women are victims of injustice, but that
these injustices have political causes, consequences and remedies, and should
be treated as such. They have political causes, because sexual inequality is
not simply a personal misfortune that falls from the sky, or the product of the
personal deficiencies of particular women and men, but the predictable, and
sometimes intentional, result of the ways in which societies distribute and
justify power over others. But, once one grants the claim that the personal is
political, it is hard to see what the public/private distinction could be
referring to, or what could possibly by the point and justification of privacy
rights. If the personal identities, aspirations and relations of individuals
are fundamentally shaped by political factors, and have important political
consequences, then normatively and empirically it will be hard to determine
what, if anything, is personal rather
than political.
These problems are well
illustrated by the limitations of contemporary justifications of privacy
rights. These limitations reflect the seemingly endless, and apparently
irresolvable, controversies amongst lawyers and legal theorists over Brandeis’
claim that common law protection for privacy is not reducible to torts against
defamation, theft, misappropriation and misrepresentation.3 It dominates discussion of
the extent to which the US constitution supports a distinctive right to privacy
that is not simply a right to marry, procreate and be free from certain ways in
which government can intimidate, threaten and demoralise its opponents.4 In each case, what is at issue is this: the coherence of thinking that
individuals have a distinctive set of interests that can count as privacy
interests, and the justification for believing that, so described, these
interests merit legal protection by right.
Similarly, philosophers find it hard to explain why individuals have a moral right to privacy – let alone one that deserves recognition and enforcement by law. At present, therefore, there is an unresolved debate amongst moral philosophers about the best way to understand the content and justification of privacy rights, and how far, if at all, these various solutions serve to meet sceptical complaints that talk of privacy rights — though, not necessarily, of other rights — is what Bentham so memorably referred to as ‘nonsense upon stilts’.5
In short, feminist
objections to the public/private distinction and the right to privacy do not
depend simply on the fact that these have often justified undemocratic forms of
coercion and subordination, but on the apparent difficulty of coming up with
anything better. Granted, feminists have sometimes blithely suggested that it
would be no loss to the world if heterosexual love and families ceased in any
recognisable form, or if we simply scrapped the laws and conventions that
protect the privacy of individuals. For the most part, however, they have been
deeply reluctant to make such claims, or to pursue what, so it might seem, is
the logical conclusion of their ideas. This is as true of participatory
democrats like Carol Pateman or Iris Marion Young, as of liberal feminists like
Susan Okin. The result is that each ends their respective, and pretty
trenchant, critiques of the public/private distinction, by calling for us to
recognise that women, as well as men, have legitimate interests in privacy.
(Pateman 1989, 133-6; Young 1990, 119-121; Okin 1989,128).
Jarring as such conclusions
can seem, in light of the criticisms of privacy that preceded them, they are
not philosophically unmotivated, nor unhelpful, given the problems that we have
examined. For feminists are ambivalent about privacy precisely because their
critiques of the public/private distinction are not simply objections to the
way that privacy has generally been defined and protected, but — and
importantly — to conceptions of politics that ignore or disparage anything but
political activity, values, and ideas. Consequently, feminist criticisms of the
public/private distinction are as much directed at republican or participatory
democrats, who celebrate political engagement and participation, and who exhort
us to focus on the common good, as they are at liberals and democrats whose
predominant concern is with the evils of government, or with the need to
preserve the family as ‘a haven in a heartless world’.
For example, feminists like
Carol Pateman and Joan Tronto have persuasively shown that the overestimation
of political participation, relative to the activities involved in loving and
caring for others, plays an important role in justifying sexual inequality
(Pateman 1989, 122-3; Tronto 1996, ch. 7). The idea that love and care are
natural, instinctive and mindless activities not only seriously underestimates
their moral and political complexity but, inevitably, disparages the worth of
those — typically women — who are most associated
with them. The results, however, are not simply the legitimation of male power
over women — important as that is. As Hannah Pitkin has shown in
her critique of Hannah Arendt, such efforts to create a politics free from the
personal needs and constraints of daily life turns politics into an
arena for mindless self-display, and confuses the creativity and virtues that
politics, at its best, can demand with the coercion and manipulation of others
(Pitkin, 1981).
This is not because love and
care are always valuable, or because the personal interests of individuals are
inevitably consistent with the legitimate claims of others. Replacing the
overestimation of political activity with an idealisation of personal
attachments is, as most feminists acknowledge, no gain for our understanding of
sexual equality, or of the demands of political legitimacy. The point of
feminist criticisms of republicanism, therefore, is that they, no less than
their liberal counterparts, depend on an unduly sharp distinction between the
personal and political interests of individuals. Consequently they, like their
liberal counterparts, end up confusing the freedom and equality of women with
both personal and political forms of subordination, and identifying the dignity
of individuals with arbitrary distinctions between different ways of life. In
short, as Anne Phillips has argued, feminist criticisms of the public/private
distinction preclude a comfortable identification of democratic government with
republican political ideals, even as they expose the limitations of liberal
conceptions of politics. (Phillips, 2000)
Feminist ambivalence about
privacy, then, is not simply a product of neurosis, a failure of critical
thinking, or of disingenuousness about the implications of their ideas. Rather
it testifies to the ways that this work has exposed the limitations of even the
best critical thinking on democracy, and of those political movements and
social ideals from which feminists, like other men and women, have drawn their
insights, inspiration and energy. Still, as we have seen, democratic government
is justified not simply because the sharing of political power, or the
alternation of ruling and being ruled are all valuable, and reasons to prefer
democratic government to the alternatives. In addition, and no less
significantly, one might add that where this is the case, democracy is
justified by all the other things that it makes possible: the pursuit of
knowledge, beauty, love, happiness, freedom from want or from illness – and
that it makes possible not just for the privileged or fortunate few, but for
the many. So, if feminist criticisms of the public/private distinction are
right, there should be nothing sexist or undemocratic in thinking that while
organised collective effort can enable us to achieve ends and values that would
otherwise be impossible so, too, it can prevent individuals from discovering
what their interests are, and from pursuing these under their own steam, or in
association with people who they like and trust.
It follows, therefore, that
individuals have legitimate interests in personal as well as political forms of
freedom and equality. As each is as important as the other, and neither is
wholly reducible to the other, a democracy must protect both – even though
there is no sharp or unchanging difference between them. Thus, whichever side
of the public/private distinction we look at, individuals have legitimate
interests that are both personal and political, and that constrain how a
democracy can rightly treat its members, as the personal and political
interests of individuals serve to justify state action, where it is justified,
and to condemn it, where it is illegitimate. In short, whether we look at
principles of democratic government, or at the demands of sexual equality, a
concern for people’s personal, as well as political, freedom and equality explains
when government action is justified, and the differences between legitimate and
illegitimate forms of government.
To show that this is the
case, and to illuminate the reasons why this is so, I suggest that we
distinguish between two ways that we might justify privacy rights on democratic
principles. The one, I will call ‘the political justification of privacy
rights’, the other, I will call ‘the personal justification’. Whereas the
former justifies privacy rights based on individuals’ interests in democratic
forms of political choice and participation, the latter justifies them on the
grounds that they help to protect the personal freedom and equality of
individuals. Fully worked out, I believe, the two justifications of privacy
rights will be very similar, because people’s claims to personal life, in a
democracy, must take account of other people’s interests in political
participation and judgement – and vice-versa. However, in the interests of
clarity and brevity, I cannot fully lay out each of these justifications of
privacy here. Instead, I will focus on those aspects of them that most clearly
reflect feminist criticisms of the public/private distinction, and their
implications for liberal and republican ideas about politics. Thus, I will
argue that legal rights to privacy are justified even where individuals have
democratic political rights — such as rights to vote, to form political parties,
unions and the like — because, suitably defined, privacy rights represent a
society’s commitment to the freedom and equality of its members, and are
useful, sometimes, necessary devices to ensure that legal rights are, indeed,
democratic.
To avoid unnecessary
complexities, I will assume that legal rights can be justified on democratic
principles,6 and will try to stick to pretty intuitive and generally accepted
assumptions about what, if anything, a privacy right looks like, and what must
be granted about politics in a democracy. Thus, I will think of privacy rights
as primarily, but not exclusively, rights of solitude, intimacy and
confidentiality – as whatever the controversy over these rights, privacy rights
are generally thought to include these three.
Similarly, I will assume that democratic politics involves making and
enforcing decisions that will affect everyone, aggregating and representing the
different interests of individuals, and pursuing common ends through
cooperation and competition. For there is, I suspect, no credible conception of
democracy that excludes these elements, although different conceptions of
democracy may emphasise some of these more than others.
The political justification of
privacy rights has two aspects: one, a claim that such rights are useful
devices for promoting political participation and for testing that rights of
political choice, association and expression adequately protect the legitimate
interests of individuals. The other, is that protection for privacy itself is
worthwhile, given a commitment to a politics that is free, and a reflection of
the equality of individuals. Each obviously depends on the assumption that
privacy rights can serve a useful purpose in a democracy, by supplementing the
other rights of individuals. However, the emphasis in each case is slightly
different, for the former stresses the political uses of privacy rights,
whereas the latter locates their justification more directly in the political
ideals of democracy itself.
The secret ballot, for
instance, reflects the ways in which protection for the confidentiality of
individuals can promote their political freedom and equality. However
democratic our political rights look on their face, they will obviously fail to
protect the legitimate interests of individuals if violence and intimidation
can prevent their exercise, or determine the uses to which these rights are
put. Thus, the standard justification for the secret ballot is that it helps to
ensure that voting is voluntary, by ensuring that no-one can force anybody to
vote, or to vote in one way rather than another.
But the justification for
the secret ballot is not purely instrumental, given democratic principles -
despite the views of those, like John Stuart Mill, who believe that everyone
should, in principle, know how everyone else has voted (Mill, 1993, ch. 10 and
especially 323-9). Mill’s idea, clearly, is that people must be accountable to
each other for the way that they have voted, because voting can fundamentally
affect the wellbeing of others. People can be entitled to vote, he claims,
because voting can be necessary to their self-protection. However, Mill insists
that a person’s vote ‘is not a thing in which he has an option; it has no more
to do with his personal wishes than the verdict of a juryman. It is strictly a
matter of duty; he is bound to give it according to his best and most
conscientious opinion of the public good’ (324). Hence, he maintains, while
secrecy can be justified in exceptional circumstances, publicity in voting
amongst citizens, as amongst M.P.s, themselves, should be the norm (323 and
329).
Mill’s view, here, reflects
a republican concern with people’s ability to form and then act on judgements
without needing to defer to others, and a corresponding indifference to power
differentials once this capacity is met. (Phillips 2000, 13-15) It is the
independence of one’s will in voting, not the weight of one’s vote, that
matters to Mill. Consequently, he supposes that were intimidation not so great
a risk, the same standards of publicity should apply to ordinary voters and
legislators alike, despite the differences in their power, influence and
responsibility.
But, in a democracy, voting
is a right, and not simply a duty that one may have to exercise in certain
circumstances. It is a right, because individuals have legitimate interests in
political participation of their own, and these are not simply an expression of
their duties to others. Thus, the standards of publicity and participation
necessary to ensure that public officials are accountable to those they
represent are not directly appropriate to the conduct of ordinary citizens: for
the rights and duties of those who hold special trust for the wellbeing of
citizens are properly different from those which define the essential
ingredients of citizenship itself.
By contrast, the
These arguments can be
generalised, I think, to explain the importance of privacy on a democratic
conception of politics. For while the Supreme Court’s arguments, appropriately,
reflected the particular features of the American Constitution, and the
struggles over desegregation and voting rights in 1950s
Individuals’ political
interests in privacy, however, are not simply interests in confidentiality, but
in intimacy and solitude as well. These are not the same, because physical
assault and coercion can perfectly well be anonymous and intimate, as with rape.
Nor is it necessary for the state to violate our confidentiality in order for
it to punish political dissent by ransacking our homes, or separating us from
friends and loved ones. While, conceivably, privacy protection for our
confidentiality, in conjunction with our other democratic rights, may be
sufficient to protect our legitimate political interests, these examples
suggest that we cannot take this for granted. Nor, indeed, from a democratic
perspective is there any reason to privilege individuals’ interests in
confidentiality over their interests in intimacy or solitude. So far as one can
tell each of these is as capable as the other of reflecting people’s interests
in political choice and participation and, thus, equally deserving of distinct
legal recognition and protection.
For example, privacy
protection for solitude and for associations based on mutual affection, love
and care, can help to ensure that politics is voluntary, and that the costs of
political defeat or failure do not threaten people with the loss of their
lives, bodily integrity, or relationships that they cherish, and which comfort
and sustain them. Privacy protection for the solitude and intimacy of
individuals, moreover, can reflect the fact that there is no sharp distinction
between the personal and political interests of individuals on a democratic
view of politics, nor between the ways that individuals conduct their everyday
lives and the ways that they collectively identify, represent and pursue their
interests.
Take, for instance, Virginia
Woolf’s account of the importance of ‘a room of one’s own’ to a writer in her
book of that name. At one level, that significance is personal. Without it,
Woolf suggests, budding writers will lack the chance to develop their talents
and, above all, to view such development as legitimate. The hypothetical story
of Shakespeare’s sister (46-49) is meant to illustrate the point that ‘any
woman with a great gift in the sixteenth century would certainly have gone
crazed, shot herself, or ended her days in some lonely cottage outside the
village, half witch, half wizard, feared and mocked at’. (49) Indeed, Woolf
notes, even so wonderful a novelist as Jane Austen believed that there was
something discreditable in writing novels and was, according to her nephew, in
the habit of hiding her manuscripts whenever ‘servants or visitors or any
persons beyond her own family party’ came into the common sitting room where
she worked (67).
But the point is not purely
personal or artistic, even for Woolf. As Woolf sees, until women have some
experience of lives lived independent of the needs of men and children, they
will have only a partial and incomplete picture of the different relations in
which women can stand to each other, the sorts of lives to which they can
aspire, and the opportunities and resources they can claim as their due. Hence
she looks forward to the day when a woman might write a novel where two women — one
of them married, with children — might be presented as sharing a laboratory together
and liking each other without this seeming in any way peculiar, to the novelist
herself, or to her readers (82-4). At that point, women would no longer serve
‘as looking glasses possessing the magic and delicious power of reflecting the
figure of man at twice its natural size’ (35), or have to engage in childish
competitions and comparisons in order to prove their individual and collective
worth (106): for men and women would then be equals, even though they are
different.
I would, therefore, disagree
with Michael Sandel that privacy rights to solitude, properly understood, have
nothing to do with the use of contraception by the unmarried, or with access to
safe, legal and affordable abortion for women. (Sandel, 1996, ch.4) Leaving
aside the historical and legal aspects of his arguments about the
constitutional right to privacy in
Likewise, people need
protection for their intimate relationships because prejudice and hostility,
where widespread, can undermine people’s capacities to defend their interests
politically, and because democratic politics often takes the form of
oppositional sexual and familial associations that are meant to illustrate the
deficiencies of conventional moral and political ideas. Companionate marriage,
interracial marriage, marriage across religious lines – these are all ways in
which people have challenged what they recognized as unjust subordination, and
tried to put into practice their beliefs about the dignity of the person they
love, and of the social groups to which that individual belongs. Similarly,
people have challenged the value of marriage and, with it, traditional notions
of morality, sexuality and human nature, by living openly together although
unwed, or by refusing to marry just because they are going to have a child and
to raise it as a couple. Demonstrating, not merely advocating, is an important
form of political persuasion and necessary to political testimony. Thus, with
the usual provisos for coercion, exploitation and deception, it is necessary
for people to have broad rights of intimate association given a democratic
conception of politics.
The flip side of this, of
course, is that denying people the rights to have sex together, to marry or
form families are all way in which states can punish non-conformity, and
entrench favoured patterns of power and privilege. Thus, in order to maintain
white supremacy, the state of Virginia, like fifteen other states in 1967,
forbade marriages between whites and blacks, and made such marriages legally
punishable with imprisonment of between one and five years.8 As the Court saw, when it
struck down such laws, the fact that Virginia was willing to punish whites and
blacks equally did not make these laws any less an affront to racial equality,
or an unjust deprivation of freedom. Granted, even when people have the choice,
they typically marry within, not across, lines of class and race – or of
religion, in societies divided along religious lines. So, privacy in these
matters may replicate, rather than undermine, unjust patterns of power and
privilege. But, at least, the coercive power of the state will no longer be
used to maintain and justify these hierarchies; and once that happens, it
becomes possible to consider how state action might help in the hard task of
creating more democratic social and political arrangements.
The Personal Justification
What, though, of the
personal justification of privacy rights on democratic principles? Like the
political justification it, too, has instrumental and intrinsic features. Whereas
the former stress the ways that protection for privacy can promote the personal
freedom and equality of individuals, the latter stress the importance to a
democratic conception of persons of solitude, intimacy and confidentiality.
Thus, in important respects the personal and political justifications of
privacy rights are very similar — as we might expect — and reflect the fact that,
on democratic principles, there are no hard and fast differences between voting
rights and other rights, or between the personal and political interests of
individuals.
For example, the reasons to
protect the confidentiality of individuals by privacy rights is that this gives
individuals considerable flexibility in their interactions with others
(Rachels, 1975). The social conventions these support mean that people do not
have to engage in elaborate rituals in order to be courteous, nor do they need
to know, or pretend to know, the details of a person’s life or social position,
in order to show concern for them as a matter of course. In this, as Judith
Shklar and Nancy Rosenblum have emphasised, the face to face interactions of
relative strangers in a democracy can be distinguished from those that are
typical of aristocratic societies, and from the rudeness, condescension, bullying,
and nosiness that makes even the most ordinary interaction with officials so
burdensome and frustrating in authoritarian regimes (Shklar 1984, 136;
Rosenblum 1998, 351-4). Moreover, because privacy rights enable individuals to
relinquish their privacy voluntarily, and to different degrees in different
contexts, protection for privacy by legal rights enables individuals to confide
in those they trust, and to make physical proximity an expression of love and
intimacy. More generally, privacy rights enable individuals to give personal
meaning and nuance to their interactions with others, even when these are of a
relatively common or stereotyped kind.
Thus, while protection for
the privacy of women is often necessary to promote equality in the workplace,
or in their treatment by those with whom they may have to interact regularly,
its justification is not purely instrumental. Prohibiting employers from asking
women about their marital status, sexual habits and reproductive plans, for
instance, is clearly critical to their personal freedom and equality, in a
world where paid employment is important to the wellbeing, status and
self-respect of most people, and in which women can be harmed by prejudiced and
coercive questions. In addition, it can reflect the democratic idea that it is
for employees, as much as for employers, to determine the quality of their
personal relations. Thus, the sharing of intimate or personal information
should not be a reflection of the differences in power between employer and employee,
as it is when employees are forced to divulge information of a sensitivity and
quantity that an employer never reveals; or when an employer can maintain the
secrecy of information that will affect the job-prospects of an employee, but
not vice-versa. Altering the privacy rights of individuals to reflect women’s
claims to freedom and equality with men, therefore, can enable a society to
alter conventions and habits that are oppressive and demeaning to women, and
that are hard to reconcile with a democratic conception of human relations.
What about the personal
justification for solitude and intimacy? In each case, as with privacy
protection for confidentiality, what matters is that legal protection be
consistent with the personal freedom and equality of individuals, and with the
differences between democratic and undemocratic governments. Hence, the
instrumental reasons to protect the solitude and intimacy of individuals
include, but are not limited to, the ways in which doing so helps people to pursue
the things that they value, whether or not those ends are best realised
separately or in conjunction with others. Privacy protection for solitude and
intimacy enables individuals to determine which trade-offs between these goods
best suit them at any one time, and over the long run. This is important to
protect them from coercion and exploitation, because solitude and intimacy are
not always jointly realisable, and individuals can, quite properly, differ in
their needs, as well as their tastes and capacities, for each.
For example, some people
feel most relaxed, most themselves and happiest in work that involves a great
deal of solitude and independence, whether this means sitting at a desk or
working outdoors in the countryside or in the city. Such people have
significant interests in seeing that they can pursue work that meets these
personal characteristics, as they may be unable adequately to compensate for
unhappiness at work by the security, pay or leisure that it provides. By contrast, some people hate to work alone
and highly value the companionship that work provides. Thus, they prefer to
work in places where they can form and maintain friendships through their work.
Indeed, for some people, it is through their work that they feel most able to express
love, tenderness and concern for others, and to find the happiness that others
seek though sex, and romantic and familial attachments.
Protection for the solitude
and intimate associations of individuals, then, are closely connected to
democratic ideals and practices. We must often act collectively in order to
achieve our ends, and must often associate with people we dislike. Protection
for our solitude, as for associations based on our preferences, desires and
interests, not only helps to make this bearable but reminds us that we are,
nonetheless, individuals with distinctive rights and duties of our own. Privacy
rights, from this perspective, symbolize, as they help to guarantee, our
independence and equality as citizens by carving out areas of life in which,
imaginatively and in fact, we can create a life that is recognizably our own.
People cannot easily think
of themselves as free, or as the equal of others, when the state dictates to
them what they must desire, or how they must conduct their intimate affairs.
Thus, while the state has legitimate and important interests in ensuring that
children are raised in loving, nurturing homes, it is increasingly clear that
states cannot pursue these legitimate interests by forbidding extramarital sex,
making divorce and remarriage especially onerous, curtailing access to
contraception and abortion or, indeed, by forbidding homosexual sex and
marriage. Such policies, inevitably, reinforce unfounded prejudices about the
capacities and value of individuals and these, in turn, inevitably affect the
way we decide who is deserving of public trust, honour and leadership. As
Justice Kennedy wrote, in his majority opinion in Lawrence et al. v. Texas,
‘When homosexual conduct is made criminal by the law of the State, that
declaration in and of itself is an invitation to subject homosexual persons to
discrimination both in the public and in the private spheres’.9 However popular, therefore,
such policies seem a travesty, rather than a realization of democratic values,
and remind us that efforts to provide a purely procedural, or majoritarian,
account of democracy are doomed to failure.
This means that we cannot
identify the content and justification for privacy rights, in a democracy, by
assuming that individuals have much the same needs and tastes for privacy, or
that the connections between the privacy and the personal freedom and equality
of individuals will be easy to define generically. For example, religious
beliefs, not sexual and familial affection, define the nature and importance of
intimacy in the lives of some people. For others, by contrast, love of country,
of one’s troops, of music or sport form the prototype on which a lovable person
or object is based. None of these, so far as one can tell, is inherently more
consistent with the freedom and equality of individuals than the other. Nor is
one of these intrinsically more meritorious or deserving of public recognition
and support on democratic grounds. Hence, we should not expect privacy rights
to privilege family life over religious obligation, or these over love of
nature or of art – for each is, in principle, as capable as the rest of
reflecting people’s personal interests in freedom and equality.
In this the personal
justification of privacy rights can be distinguished from liberal and
republican ones. For while a democratic conception of persons reflects the
liberal idea that people can legitimately differ in their needs and tastes, it
extends and deepens that idea in two ways. It extends it by noting that because
this is so, we cannot treat individuals’ legitimate interests in privacy simply
as matters of taste, preference and conviction, as though people do not need
solitude or intimacy, on occasion, in order to vindicate their freedom and
equality. But attention to democratic principles deepens our sense of the
connections between protection for the privacy of individuals, and protection
for their freedom and equality. Hence, the reasons to protect personal privacy,
in a democracy, mean that we cannot be indifferent to the ways that family
circumstance and structure affect the life-prospects of individuals, or the
ways in which the relations within, as well as between, families, may threaten
democratic forms of privacy.
Feminist objections to the
public/private distinction suggest that we must distinguish democratic claims
to solitude and intimacy from liberal ones, but they also illuminate the
differences between democratic and republican approaches to basic rights. Even
if people have legitimate interests in political choice and participation, it
does not follow that they must find their happiness in politics, or experience
political engagement as an expression of freedom, rather than of duty. Nor,
indeed, is there anything especially democratic about the idea that individuals
must be willing and able successfully to participate in politics in order to
protect their legitimate interests in privacy, or anything else. Whether
because they are old, young, sick, distracted by fear and anxiety, or because
of their personal beliefs, obligations and temperaments, it can be hard for
some people successfully to engage in collective action. Hence we cannot make
success in electoral competition, however democratic, a requirement in order to
guarantee the basic rights of individuals.
Thus, whether we look at
democracy as a special form of government, or as a distinctive type of society,
and whether we concentrate on the political or the personal dimensions of
people’s lives, it appears that privacy rights are justified on democratic
grounds. Indeed, we can distinguish a democratic justification of privacy
rights from alternatives whether we are more attracted to liberal and
representative conceptions of democracy, or to republican and participatory
ones. So, it seems fair to conclude that privacy rights are consistent with
democratic government, and with the legitimate interests of men and women.
There are, therefore, at
least two ways to justify privacy rights in a democracy and, in principle,
there may be many more. After all, it would be silly to insist that we must distinguish individuals’ personal
and political interests simply because we can.
Indeed, that would be to ignore the implications of feminist criticisms of the
public/private distinction: for these imply that there can be many ways to
determine the legitimate limits of state action, as there is nothing especially
important, or distinctive, about the differences between the personal and
political interests of individuals.
Thus, we could, in
principle, work out a justification for privacy rights based on utilitarian and
natural rights theories. Whatever the problems of such theories as they stand,
women and men clearly have legitimate interests in happiness, and in rights if
they are stateless. In fact, most conceptions of democracy owe a good deal to
both traditions, as do most conceptions of legal rights. For these reasons, I
suspect that it would be no harder, and just as useful, to use utilitarian and
natural rights theories in the ways that I have just used liberal and
republican ones - in order to work out a democratic account of the privacy
rights of individuals, and to distinguish them from alternatives.
But it is unnecessary to go
into such matters here. On a democratic justification of privacy rights,
everyone has legitimate interests in privacy that include, but are not limited
to, interests in solitude, intimacy and confidentiality. As these legitimate
interests in privacy reflect the importance of democratic government to the
freedom and equality of individuals, whether or not they actually live under
such governments, it seems fair to suppose that the case for privacy rights we
have just considered justifies legal protection for our privacy no matter who,
or where, we are. But interesting and important as such matters are if we want
fully to develop and analyse a democratic theory of privacy rights, they are
best left for another time and another paper.
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NOTES
1. MacKinnon 1983,
ch.8; Olsen 1983; Pateman 1989, ch. 6; Okin 1989, ch. 6; Taub and Schneider
1990, ch. 7.
2. Weisstein, 33-34;
Kesselman, 42; Densmore, 72 – 3; Freeman, 176 and Spero, 368-9 in Blau,
DuPlessis and Snitow, 1998. On the slogan that the personal is political, see
Nicholson 1986, 17 – 43; and Phillips 1991, 92 – 119.
3. Compare Warren and
Brandeis 1984, Prosser 1984 and Bloustein, 1984
4. Compare Ely 1973;
Bork 1990 and Glendon 1991 ch. 3; with Gerety 1977; and Gavison 1984.
5. For classic examples of this debate see Thomson 1975;
Scanlon 1975; Rachels 1975; and Reiman 1976. For more recent work on the
subject see Allen 1988; Inness 1992; Boling 1996; DeCew 1997.
6. For some doubts on this score, see Brown 1995, ch. 5.
7.
NAACP v.
8. See Loving v.
Virginia, 388 U.S. 1 (1967) It should be noted that blacks were allowed to
marry people who were not black, as long as they were not white – whites, by
contrast, were only allowed to other whites.
9. Lawrence et al. v.
Texas, 123 S.Ct. 2472, (2003) This
case overturned a prior Supreme Court decision which held that the right to
privacy did not cover consensual adult homosexual intercourse, even where it
occurred in the home. That case was Bowers v. Hardwick, 478
Copyright
© 2005 Minerva
All
rights are reserved, but fair and good faith use with full attribution may be
made of this work for educational or scholarly purposes.
Annabelle
Lever is an Honorary Senior Fellow in the Philosophy Department of University College London, and is working
on a book on privacy for Routledge.
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