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Privacy and Limited Democracy: The Moral Centrality of Persons

Published online by Cambridge University Press:  13 January 2009

H. Tristram Engelhardt Jr
H. Tristram Engelhardt Jr
Affiliation:
Medicine and Philosophy, Baylor College of Medicine and Rice University
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Extract

Of all the moral concerns regarding privacy in its various meanings, this essay selects only one: the right to be left alone by others, in particular, by government. Because moral controversies in pluralist societies tend to be interminable, and surely controversies regarding privacy are no exception, I approach the right to privacy in terms of the centrality of persons. When there are foundational disputes about which content-full moral view should govern, it is not possible to resolve such controversies without begging the question or conceding at the outset crucial moral premises. This observation is not to affirm a moral skepticism or relativism. At worst, it involves an epistemic skepticism, a skepticism about the possibility of resolving controversies by sound rational argument without begging the question or engaging in an infinite regress.

Type
Research Article
Information
Social Philosophy and Policy , Volume 17 , Issue 2 , Summer 2000 , pp. 120 - 140
Copyright
Copyright © Social Philosophy and Policy Foundation 2000

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References

1 I have developed at some length the arguments regarding this grounding in consent of a morality that can be shared with moral strangers; see my The Foundations of Bioethics, 2d ed. (New York: Oxford University Press, 1996).Google Scholar

2 A phenomenology of privacy would offer a presentation of the lived experience of the importance of various forms of privacy.

3 Lewis, Charlton T. and Short, Charles, A Latin Dictionary (Oxford: Clarendon Press, 1980), 1447.Google Scholar

4 Oxford English Dictionary, s.v. “privacy.”

5 Ibid.

6 Satellites can not only photograph activities on private property that one might take to be unseen, but can also, by mapping, create a universal set of identifiers. See, for example, Curry, Michael R., “Digital People, Digital Places: Rethinking Privacy in a World of Information,” Ethics behavior 7, no. 3 (04 1997): 253–63.CrossRefGoogle Scholar

7 The ordinary and customary measurement for ranchland in Texas and other civilized regions is in sections; a section contains one square mile, a mile being eight furlongs long. It is because a furlong is ten chains long and a chain 66 feet that a mile is 5,280 feet long. A decent ranch would comprise nine sections, because a league is three miles and Spanish land grants were for a square league of land.

8 See, for example, Engstrom, Timothy H., “Corporate Appropriation of Privacy: The Transformation of the Personal and Public,” Ethics behavior 7, no. 3 (04 1997): 239–52CrossRefGoogle Scholar; and Bloche, M. Gregg, “Managed Care, Medical Privacy, and the Paradigm of Consent,” Kennedy Institute of Ethics Journal 7, no. 4 (12 1997): 381–86.CrossRefGoogle ScholarPubMed

9 The mere comparison of blood types within a family often reveals that the wife's husband, whose role as the father of the children had been taken for granted, cannot be the biological father. Genetic science threatens the disclosure of an immense amount of further information with significant social and economic implications. See, for example, Brockett, Patrick L. and Tankersley, E. Susan, “The Genetics Revolution: Economics, Ethics and Insurance,” Journal of Business Ethics 16, no. 15 (11 1997): 1661–76.CrossRefGoogle ScholarPubMed

10 Rights to privacy have roots in the vaunted rights of Englishmen, which draw on ancient pagan moral, political, and legal understandings that recognized the individual as having inherent and robust rights against the sovereign. See, for example, Lea, Henry Charles, Torture (1866; reprint, Philadelphia: University of Pennsylvania Press, 1973), 24–25Google Scholar; and the reports of Tacitus in his Germania. Albeit transformed by later influences, these understandings persisted in English law and framed the pagan Icelandic and Viking attitudes toward morals and polity. See Foote, Peter and Wilson, Davis M., The Viking Achievement (London: Sidgwick & Jackson, 1980).Google Scholar Among the Vikings in particular, there was a well-developed view of the limits of sovereignty. Foote and Wilson provide one example of this by drawing on the Chronicle of Dido of St. Quentin (ca. 970–1043). Dido reported that Rollo of Normandy, when asked to kiss the foot of King Charles the Simple (the ruler of France [898–929]), responded by lifting the king's foot to his mouth, thus upending the king flat on his back (Foote, and Wilson, , The Viking Experience, 79).Google Scholar

11 Bloustein, Edward J., “Privacy as an Aspect of Human Dignity,” in Schoeman, Ferdinand David, ed., Philosophical Dimensions of Privacy: An Anthology (Cambridge: Cambridge University Press, 1984), 158.Google Scholar The language of rights to privacy was influenced by Samuel D. Warren and Louis D. Brandeis; see their “The Right to Privacy,” Harvard Law Review 4, no. 5 (12 1890): 193–220.Google Scholar

12 The challenge is not simply to know truly what is right, good, just, and virtuous, but also to know truly when we know this.

13 Here I borrow an image from Jean-François Lyotard. “In contemporary society and culture — postindustrial society, postmodern culture — the question of the legitimization of knowledge is formulated in different terms. The grand narrative has lost its credibility, regardless of what mode of unification it uses, regardless of whether it is a speculative narrative or a narrative of emancipation” (Lyotard, Jean-François, The Postmodern Condition, trans. Bennington, G. and Massumi, B. [Manchester: Manchester University Press, 1984], 37).Google Scholar It is not simply that a universal moral narrative has de facto lost its credibility. More importantly, its credibility cannot be restored in a principled fashion. The moral diversity of postmodernity is not just a socio-moral fact of the matter, but a condition expressing the limits of secular moral knowledge. This recognition, it should be noted, involves a certain epistemological skepticism, but not a metaphysical skepticism. It is not a denial of an ultimate moral truth that should command the assent of all. It involves only a recognition that this truth cannot be conclusively established by sound rational argument.

14 The qualification “secular” is attached to “moral” in order to indicate that there are religious moral insights unavailable to general moral reflection. The author of this essay is, after all, an Orthodox Christian.

15 There is a genre of liberalism that, by affirming a very particular understanding of liberty, does not allow persons consensually to choose their own understandings of how freely to relate to each other. For example, John Rawls argues that children should be required to have knowledge of their constitutional and civic rights and that “their education should also prepare them to be fully cooperating members of society and enable them to be self-supporting; it should also encourage the political virtues so that they want to honor the fair terms of social cooperation in their relations with the rest of society” (Rawls, , Political Liberalism [New York: Columbia University Press, 1993], 199Google Scholar). Unlike libertarian liberals, cosmopolitan liberals or social democrats in fact affirm a “thick” understanding of community as the foundation of societal relationships. While affirming liberty, they give it a “thick” content which amounts to requiring a particular form of communal life. It is with regard to education or indoctrination about particular understandings of virtues and vices that the most significant conflicts may arise. I have examined the development of the liberal cosmopolitan ethos and its antilibertarian character in my The Foundations of Bioethics, chap. 3.

16 In two articles bearing on issues of privacy, Thomas Nagel warns against the communitarian identification of community and society with a “thick” view of human virtue: “The radical communitarian view that nothing in personal life is beyond the legitimate control of the community if its dominant values are at stake is the main contemporary threat to human rights” (Nagel, , “Personal Rights and Public Space,” Philosophy and Public Affairs 24, no. 2 [Spring 1995]: 106CrossRefGoogle Scholar); “Communitarianism — the ambition of collective self-realization — is one of the most persistent threats to the human spirit” (Nagel, , “Concealment and Exposure,” Philosophy and Public Affairs 27, no. 1 [Winter 1998]: 29).CrossRefGoogle Scholar

17 It turns out, mirabile factu, that only that pluralism that is reasonable in social democratic terms is accepted as compatible with a social democratic polity. See, for example, Rawls, , Political Liberalism, 36ff.Google Scholar

18 “A doctrine is fully comprehensive if it covers all recognized values and virtues within one rather precisely articulated system.…” (ibid., 152).

19 Rawls, John, “The Idea of Public Reason Revisited,” University of Chicago Law Review 64, no. 3 (Summer 1997): 776.CrossRefGoogle Scholar

20 Ibid., 771.

21 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 290.Google Scholar

22 The notion of social democratic reason is introduced in order to establish the bar that Rawls wishes to erect against those, such as libertarians, who may have philosophical accounts denying the moral legitimacy of a social democratic state and who will cooperate with a social democratic state only as a modus vivendi. Rawls, for example, holds that, “[t]o be reasonable, political conceptions must justify only constitutions that satisfy this principle” (Rawls, , “The Idea of Public Reason Revisited,” 771Google Scholar). That is, political conceptions must involve an understanding of political justice that affirms a social democracy as more than a modus vivendi. Therefore, Rawls holds that “comprehensive doctrines that cannot support such a democratic society are not reasonable” (ibid., 801). The principle that Rawls has in mind is: “Our exercise of political power is proper only when we sincerely believe that the reasons we would offer for our political actions—were we to state them as government officials — are sufficient, and we also reasonably think that other citizens might also reason ably accept those reasons” (ibid., 771). Thus, one would be disbarred from arguing that there are unavoidable limits on the authority of citizens to impose constraints on consensual actions, not to mention limits on the imposition of many forms of taxation. If it were the fact of the matter that most citizens accepted social democratic premises — thus, by consent, licensing interferences with consensual actions — then for Rawls an appeal to step back from such commitments would be illegitimate, even if well-founded in libertarian terms. Libertarians may not “accept a democratic government merely as a modus vivendi” (ibid., 780) with the hope that in the future they will be able to persuade enough citizens to amend the constitution in order to erect libertarian constraints on the actions of the majority.

23 Ibid., 791.

24 Ibid.

25 Ibid.

26 Ibid., 781.

27 Ibid., 806.

28 Ibid., 783–84.

29 Ibid., 767.

30 Ibid., 790.

31 Ibid., 791.

32 Rawls, for example, cites Mill, John Stuart, Subjection of Women, chap. 2.Google Scholar

33 Rawls, , “The Idea of Public Reason Revisited,” 791.Google Scholar

34 Ibid., 765–66.

35 For a more extensive development of this argument, see Engelhardt, , The Foundations of Bioethics, chaps. 2, 3, and 4Google Scholar; see also Engelhardt, H. Tristram Jr., Bioethics and Secular Humanism (Philadelphia: Trinity Press International, 1991), chap. 5.Google Scholar For an introduction to the issues associated with resolving moral controversies by sound rational argument, see Engelhardt, H. Tristram Jr., and Caplan, Arthur, Scientific Controversies (New York: Cambridge University Press, 1987).CrossRefGoogle Scholar

36 In a prisoner's dilemma, cooperation or coordination allows cooperating individuals to improve their outcome over what they would have obtained had they acted independently. Suppose Bubba and J. R. fall upon the Houston branch of the Yankee Bank of Commerce and are arrested by the police with only circumstantial evidence against them. If both of them hold to their story denying their involvement, they will both go free. However, if the police can get one of the pair to confess in exchange for a reduced sentence, the one who first cooperates still receives a sentence (and the other receives a longer sentence), so both will be worse off. However, if J. R. (but not Bubba) has engaged in the robbery on behalf of the Texas National Liberation Front, J. R. may in fact wish to confess so he can be tried as a martyr. Thus, in this situation, Bubba has no possibility of a successful outcome because whatever choice he makes — silence or confession — he cannot win. In other words, Bubba has no winning strategy. Coordination or cooperation only works when the participants share the same values.

37 Rorty, Richard, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989), 196.CrossRefGoogle Scholar

38 Warren, and Brandeis, , “The Right to Privacy,” 193.Google Scholar Rights to privacy in English law have roots in ancient Germanic proscriptions of battery and their robust recognition of forbearance rights. See, for example, Drew, Katherine Fischer, trans., The Lombard Laws (Philadelphia: University of Pennsylvania Press, 1973)Google Scholar; and Drew, Katherine Fischer, trans., The Burgundian Code (Philadelphia: University of Pennsylvania Press, 1972).Google Scholar As already noted, in ancient pagan Germany, legal protections were nested within a general notion of a limited government. See, for example, Lea, , Torture, 24–25.Google Scholar These protections have a resonance in the Magna Carta (a.d. 1215), especially in sec. 39. All of this underlies a background of concerns that culminate in claims to rights to privacy.

39 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).Google Scholar

40 In re President and Directors of Georgetown College, Inc., 331 F.2d 1000, 1017 (D.C. Cir.) cert. denied, 337 U.S. 978 (1964) (Burger, J., dissenting) (emphasis in original).Google Scholar

41 The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

42 The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

43 The Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

44 Nowak, John E., Rotunda, Ronald D., and Young, J. Nelson, Constitutional Law, 2d ed. (St. Paul, MN: West, 1983), 1412–14.Google Scholar For an exploration of the development of legal concepts of privacy, see Gerety, Tom, “Redefining Privacy,” Harvard Civil Rights-Civil Liberties Law Review 12, no. 2 (Spring 1977): 233–96.Google Scholar See also O'Brien, David M., Privacy, Law, and Public Policy (New York: Praeger, 1979), esp. 177–99.Google Scholar

45 For example, see Griswold v. Connecticut, 381 U.S. 479 (1965)Google Scholar (establishing a constitutional right of married couples to use contraception); Eisenstadt v. Baird, 405 U.S. 438 (1972)Google Scholar (establishing the right of unmarried individuals to acquire contraceptives); and Roe v. Wade, 410 U.S. 113 (1973) (establishing a constitutional right to access to abortion).Google Scholar

46 In re Cruzan, 58 LW 4916 (1990).Google Scholar

47 U.S. Constitution, amend. 9.

48 Griswold, 381 U.S. at 488.

49 Patterson, Bennett B., The Forgotten Ninth Amendment: A Call for Legislative and Judicial Recognition of Rights Under Social Conditions of Today (Indianapolis, IN: Bobbs-Merrill, 1955), 1–2.Google Scholar

50 In exploring the lineage of legitimacy, the focus must be on bare consent or permission in order to avoid value-laden construals of legitimacy that seek to disclose unfair imbalances of power or the marks of false consciousness. In the absence of a canonical, content-full moral vision, bare procedure must be central.