Contents
Acknowledgements
1 Introduction
1 Discourses on privacy
2 Privacy: conceptual clarifications
3 The framework of liberal democracy
4 Cultural differences: autonomy and authenticity
5 A comment on the method
6 Privacy and autonomy: the line of argument
2 Equal Freedom, Equal Privacy: On the Critique of the Liberal Tradition
1 Head or heart: contradictions in the liberal concept of privacy
2 The feminist critique
3 Three classics of liberal thought: Locke, Mill and Rawls
4 Equality and difference between the sexes Parenthesis: On the debate over equality and difference
5 Equal freedom, equal privacy
3 Freedom, Privacy and Autonomy
1 Introduction
2 A general concept of freedom
3 Freedom and autonomy
4 Why do we value privacy?
5 Privacy and autonomy
THE THREE DIMENSIONS OF PRIVACY
4 Decisional Privacy: Scope for Action and Decisions
1 Private matters and freedom for decisions
2 Decisional privacy and autonomy (1): the communitarian critique
3 Decisional privacy and autonomy (2): the feminist critique
4 What sort of freedom is protected by privacy?
5 Informational Privacy: Limits to Knowledge
1 Expectations: what do other people know about me?
2 Informational privacy and unspecified others: the panopticon
3 Informational privacy and specified others: collusions, friendships and intimate relations
4 Expectations, knowledge, autonomy
6 Local Privacy: The Private Home
1 The refuge of privacy
2 A room of one’s own: self-invention, self-presentation and autonomy
3 Privacy and the family: love and justice
7 Interfaces: Public and Private
1 Interfaces and ambivalences
2 Exposure: the staging of privacy in the public realm
3 Concealment: the protection of the public realm from private matters
4 The private and the public person: dissonant identities
Notes
References
Index
For Rebecca, even though it’s a book without pictures
Der Wert des Privaten © Suhrkamp Verlag Frankfurt am Main 2001 English edition ©Polity Press 2005
The right of Beate Rössler to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
The publication of this work was supported by a grant from the Goethe-Institut
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For critical discussions and other support I thank Stefan Gosepath, Marcus Otto, Walter Pfannkuche, Holmer Steinfath and Bernhard Thöle: our Berlin colloquium made the beginning of this book significantly easier for me. The completion of the book was greatly helped by the supportive and stimulating atmosphere in Amsterdam, both in the Faculty of Philosophy and in the Amsterdam School for Cultural Analysis: for this I thank in particular Veit Bader, Govert den Hartogh and Hent de Vries.
Along this at times rather arduous path other friends too have helped me with advice, criticism and discussions: for this many thanks go to Martina Herrmann, Dunja Jaber, Christoph Menke and Herlinde Pauer-Studer. I owe a special debt of gratitude to Martin Löw-Beer, who at the end commented on the manuscript in its entirety and in the process pointed out a series of problems to me, and to Stefan Gosepath, who time and again read the various versions of the manuscript and made friendly and critical comments on it.
A conference on privacies in Amsterdam helped me enormously to put my thoughts together: I am very grateful to the participants, above all to Anita Allen, Moira Gatens, Axel Honneth and Nicola Lacey, for their contributions and discussions.
Bernhard Peters argued with me always with patience even though without always managing to convince me. I am deeply grateful to him for his support and advice and, above all, for his encouragement at the right time.
Finally, I should like to thank Rupert Glasgow for his meticulous and sympathetic translation and for his interest in really getting the meaning right, and the Wissenschaftskolleg at Berlin for providing perfect working conditions while I read my way through the translation of the book.
Beate Rössler
The question of whom I live with is a private affair, and so is what I think about my colleagues at work. My diary is private, as is part of my correspondence. It is a private matter how I dress, which church I go to, and what profession I choose. My house and home is my private sphere, in other words my dwelling too. The question of where I send my child to school is a private one, and when I’m sitting with a friend in a cafe, though this may be a public place, it is a private affair.
This is an incomplete list of the things we describe using the complex predicate ‘private’. Yet ‘private’ is not only a complex predicate, but also one which, depending on the context in which it is used, may have a directly evaluative or prescriptive character. This comes to light not only when we rebuff someone with the remark that something is none of their business or is a private matter, but also in complaints to the effect that privacy is under threat from the new information technologies, from the latest possibilities for eavesdropping on people, watching them, filming them, etc. Privacy is here typically referred to as something worth protecting that should be normatively respected. Even complaints about the ‘blurring of boundaries’ between the public and private spheres through the ‘privatization’ of the public appeal to an implicit evaluation not only of the public sphere but also of privacy as a realm worthy of protection.
What interests me in this book are the fundamental questions: why do we value privacy? And why should we value privacy? What I try to show is that we value privacy for the sake of our autonomy. In liberal societies, privacy has the function of permitting and protecting an autonomous life.
When I speak of privacy and the protection of privacy, etc., in what follows, what I mean by this is the protection of the privacy of individual persons. I am concerned, in other words, with a theory of individual privacy. What is private and what is worth protecting about the privacy of private enterprise or the privacy of institutions (such as the Catholic Church) will here at most play only a marginal role. And when I talk of privacy in what follows, I am not simultaneously referring to the public sphere. I shall be treating the other side of this ‘great dichotomy’ as a ‘residual category’ without any more precise structure, though where necessary I shall go into the interplay and interaction of the private and the public.1
This introductory chapter is intended to provide an overview of the subject, its background, and some of the questions involved. By the end of this introduction it should be clear what the ensuing path looks like and where it will be leading.
Theories of privacy – theories of the change it has undergone, the threat it faces, the function it fulfils – are to be found in widely differing and often wholly separate discourses, each approaching the problem from a different angle, referring to different histories of privacy, and focusing on different aspects of the term’s meaning. Here I intend to give only a brief sketch of these discourses. One way or another, they will come up in greater detail in the course of the following chapters.
Privacy is a prominent topic in sociological and philosophical theories of ‘the public sphere. It is here understood both as the realm of intimacy and the sphere traditionally assigned to the family household.2 This approach also includes such theories as the one set forth by Richard Sennett, since with his concept of the ‘tyranny of intimacy’ he is more interested in a theory of public life and its decline (through the incursion of intimacy) than in a normative theory of privacy3 In such theories of the public sphere, privacy is by and large thought of merely as a residual category – designated ‘the private home’ or the ‘realm of intimacy’ and not further differentiated – since the focus is on the development and modernization of the public realm and its present-day structures and functions. Privacy is also made a theme in this way in theories of civilization, such as the work of Norbert Elias, where civilizing processes affect the privatization of what were formerly public social practices and where these processes come to bear upon the regulation of private life itself.4 In this first discourse, the spotlight is thus above all on changes in the boundary between the private and the public and transformations in the public or domestic realm, on civilizing processes as processes of privatization, and modernizing processes as processes of de-privatization.5 Also included are the sorts of diagnostic approaches (not all of them sociological in orientation) that are concerned in general with a diagnosis of the present in terms of the private sphere (most often its decline) and identify the loss of clear dividing lines, the blurring of boundaries between private and public, as a pathology of late modern societies. Here too, however, there is in the main no direct interest in a normative theory of privacy, which is instead taken as a starting-point for cultural criticism of a more general nature.6
Likewise primarily sociological in orientation, a further sort of discourse focuses on privacy on its own account, and in particular the realm of the ‘private family’. This type of discourse is interested in the changes undergone by the family as the traditional stronghold of private life.7 Privacy is here considered in its classic sense as the realm of domestic life, of the family and of intimacy, a realm that in spite of its modifications, functional shifts, spatial reconfigurations, and the recasting of roles, has been preserved in its fundamental significance from antiquity to the present day.8
These thematic treatments of privacy have been greatly influenced by a form of discourse that, though also historical or diagnostic in orientation, is predominantly critical, that is the discourse of feminist theory.9 This theoretical current has influenced the interpretations and conceptualizations of privacy in contemporary social debates more than any other. A political and philosophical discussion of the problematic nature of the public and the private has been going on in feminist theory ever since the 1960s, and it is here, much more than in the other discourses I have mentioned, that the relations between the two realms or spheres have been reflected upon. The diverse and heterogeneous feminist critique of the traditional distinction between private and public spheres has become interesting and influential in particular because it highlights deep-rooted ambivalences in the differentiation between the public and the private realm, as well as the repressive nature of this split. The history of private life is here told in a different way from the discourses referred to above, namely as the history of the banishment of certain persons and certain themes to the realm of privacy, as the history of an unjust social system and as the history of the emancipation from this.10
Quite independently of these challenges to the notion of privacy, the latest processes of modernization have seen the emergence of a new sort of discourse, one concerned with privacy of information. Its origins can be traced back to the end of the nineteenth century, when the spread of the yellow press in conjunction with the popularization of photography for the first time turned informational privacy, particularly of American public figures, into a legal and theoretical theme.11 Yet it is only since the 1950s and 1960s that it has become a major public issue, as advancements in computer technology have encouraged an increased interest on the part of government bureaucracies in gathering and processing information. Examples of this sort of discourse range from the first major studies by Edward Shils and Alan Westin through to the more recent scenarios of a panoptic society and its dangers.12
A further discourse to be mentioned here is the legal discourse concerning the right to privacy, which responds to these other approaches to the subject in various ways but nonetheless remains independent of them. In the United States, these discussions of the right to privacy have become influential in legal theory ever since the end of the nineteenth century, when the first attempts were made by American jurisprudence to derive such a right from the Constitution.13 In Germany, by contrast, discussions of the right to privacy often take place under a different rubric and in a different context: the inviolability of the home and the protection of personhood.14 There are clear cultural differences in the legislation here, implying a culturally different coding of the interest in privacy. I shall return to this point in greater detail shortly.
Finally, there is a philosophical discourse on the subject of privacy. Various positions from feminist theory, theories of the public sphere and the definitions of informational privacy converge in this discourse, which since the 1960s has come to produce an independent body of philosophical literature centred upon a precise delineation of the definition and function of privacy15 Drawing in a variety of ways on the other discourses on privacy, this literature has been interested first and foremost in the conceptual assumptions that these other discourses tacitly take for granted, seeking to use precise definitions to establish in precise terms the functions of privacy within liberal societies. A further branch of this philosophical discourse, one that is nonetheless largely independent of these analyses, can be made out in the various liberal conceptualizations of privacy that can be traced through history from Thomas Hobbes via John Stuart Mill to Richard Rorty.16 These approaches all connect the concept of privacy in functional terms with the concept of freedom, but often remain under-determined with regard to the exact meaning of privacy and its specific relation to freedom.17
This brief survey of the various treatments of privacy shows that recent interest in reconceptualizing it is due to three distinct historical processes: first, the intrusion of intimacy into the public realm through previously private themes that have turned public, as well as shifts in notions of individuality and authenticity; secondly, radical changes in the relation between the sexes and the concomitant reconfiguration of the private sphere; and thirdly, recent developments in information technologies capable of threatening the protection of personal privacy in completely new ways. This survey also shows that there is not one history of privacy, and that the history of privacy may include more than what counts as ‘private’ at any particular time.18 Finally, it brings to light the conventional nature of the separation between public and private life. Of course, there are many points of overlap between these diverse discourses and theoretical approaches, especially where feminist criticism, the sociological or diagnostic approach and theories of the public sphere are concerned. The treatment of informational privacy, however, almost always runs parallel to and independent of these other discourses. In the following chapters, I shall refer to all these discourses on privacy in varying measure, for in attempting a theory of privacy and its value I am concerned with as many as possible, if not all, of the problematic aspects of the term.
These various discourses concerned with the concept of privacy all presuppose a certain meaning of the concept, albeit for the most part not explicitly. I should therefore like to devote some attention to a more precise clarification of the concept, for only once the meaning of the concept and its definition are resolved can the function and value of privacy be discussed in more precise terms. First of all, therefore, I shall try to delineate the meaning of the concept of privacy in its full range. Following this, I want briefly to discuss some definitions that for the most part refer to a particular aspect of the meaning.19 I shall then propose a definition that seeks to do justice to the range of the concept’s meaning. Against this background I then intend to take the further step of briefly presenting the different normative suggestions concerning the function and value of privacy and sketching the idea of the value of privacy that will be elucidated in the following chapters.
Let us return once more to the semantics of the word ‘private’.20 For a start, ‘private’ should be distinguished from ‘intimate’. What is intimate is also private, but not vice versa. ‘Intimacy’ has mainly erotic or sexual connotations, connotations of proximity and vulnerability that also – but not only – have to do with exposure of one’s own body. It forms a nucleus of what one calls and wants to keep private, but for this very reason is not identical with privacy, which incorporates more than just the realm of intimacy. Secondly, ‘private’ must be distinguished from ‘secret’. What is private can be secret, but is not necessarily so, as in the case, for example, of the thoroughly public private matter of how a person dresses. What is secret can be private, but is not necessarily so, as when, for example, one speaks of state secrets.21 In this case, we thus find semantic overlaps that occur when privacy is dependent upon something being completely hidden or concealed, in other words upon a secret, as with secret diaries or also secret ballots.22 Indeed, secrecy can even help clarify the semantic contrast between private and public, for everything that is not private is public, but what is public can still be secret, as when political meetings are secret but not private. Here, of course, the different aspects of the meaning of ‘public’ in the sense of ‘concerning everybody’ and ‘accessible to everybody’ also have a part to play.23
Let us now turn in more detail to the semantic field of privacy itself. The predicate ‘private’, as we have already seen above, is a complex one, which we ascribe to actions, situations, states of mind, places and objects.24 Witness, once again, the diversity of the examples named at the outset.25 In everyday language, there are two distinct semantic models underlying the various uses of ‘private’ and ‘public’. The first is an ‘onion’ model, allowing one to distinguish between different layers of privacy. The centre of the onion is the realm of personal or bodily intimacy and privacy (including one’s private diary, for example), as opposed to which everything else is regarded as ‘public’. Then comes a second layer comprising the classic realm of privacy, that is the family (or other intimate relationships). As opposed to the family, the outside world of society and the state then constitutes the public realm. If we go a stage further, then it is society at large – the realm of economic structures or public civil society – that counts as ‘private’ with respect to intervention by the state, thus forming yet another realm of privacy in the face of the public realm of the state and its possible interference.26 The second model in everyday usage lies at right angles to the first, for this time the term ‘private’ is predicated of actions or decisions that we may take or carry out no matter where we happen to be. Going to church is thus just as much a private matter as comments that I may make in public but as a private person. In this second sense, the concept of privacy describes a protected sphere or dimension of action and responsibility, where individuals can act in a way that is independent of decisions and influences from the public realm of state institutions and society at large. The second model lies at right angles to the first because it cannot be described in spatial terms but only in terms of dimensions of action and responsibility, dimensions of interest and concern.27
If we now seek to systematize the diverse uses of the concept in conjunction with the two semantic models in order to do justice to its whole range of meaning, then the different aspects of its meaning, I want to suggest, can be classified into three basic types. We use the term ‘private’ to refer firstly to modes of action and conduct, secondly to a certain knowledge, and thirdly to spaces. The question of whether I attend church, and if so which one, thus refers to a private mode of action (in public), as does the question of which school I send my child to or what clothes I wear on the streets.28 Private knowledge or information can denote not only medical data and what I think about my colleagues at work, but also, for example, the question of whom I live with.29 Private spaces are of course dwellings or rooms.30 Expressions such as ‘private life’ and ‘the private sphere’ are to be understood, then, as hypostasizations or summaries of different aspects of these basic meanings. This classification of meaning thus seeks to integrate the various uses of the term as well as the perspectives of the two models. Of course, there are overlaps between the three basic meanings. Private ‘knowledge’, for instance, is also protected within private spaces.
So far, however, we have only systematized the meaning of the concept ‘private’. This does not in itself provide us with a clear definition of the term. A closer look at the various proposals for a definition of privacy found in the literature, especially the philosophical literature, reveals that they are almost all interested only in specific aspects of the concept’s meaning,31 which can be arranged in short into five categories. First there are definitions of privacy that designate as private whatever ‘naturally’ falls within the sphere of the household, of reproduction, of the biological necessities.32 Everything that takes place outside the (private) household, by contrast, is public. ‘Private’ is here accordingly understood only in its spatial meaning and as it were naturalized, so what is to count as private and what as public is established naturally and thus once and for all. As we know, Hannah Arendt still defined the concept of privacy in such terms.33 For the time being, I shall limit myself to asserting that such a definition is not only too narrow (doing justice to too few aspects of its meaning), but also essentializes the term implausibly. I shall return to argue the point at a later stage.34 There is another definition of the concept that has become influential in the literature. The right to privacy here means the ‘right to be left alone’.35 This very general definition of the term by Justices Warren and Brandeis prepared the field not only for detailed legal discussions but also for efforts to define it in philosophy, yet it is too general to be conceived as the starting point for a normative theory of privacy.36 For one thing, the right to be left alone can be described just as well as a negative civil liberty. A distinction between rights to freedom and rights to privacy cannot be drawn with such a broadly based definition.
A more specific approach nonetheless associated with the claim to provide a general definition of privacy is the third category, which seeks to define privacy in terms of access to or the inaccessibility of a person. Ruth Gavison here provides a classic formulation: ‘An individual enjoys perfect privacy when he is completely inaccessible to others.’37 Anita Allen’s definition is couched in similar terms: ‘Personal privacy is a condition of inaccessibility of the person, his or her mental states, or information about the person to the senses or surveillance devices of others.’38 Although the attempt to define privacy in terms of ‘access’ seems to be a valid approach, however, it remains incomplete if it is not joined by another factor, that of control. A crevasse into which I have fallen is clearly not ‘private’, even though it does comply with the condition of ‘inaccessibility’ proposed by Gavison and Allen.39 If a state of isolation, seclusion or secrecy is enforced and not freely chosen, in other words if the person in question has no control over it, then one would not describe it as ‘private’.40
On the other hand, there are also approaches – making up the fourth group of proposed definitions – that take the idea of control as their very starting point, that is control over specific areas of privacy. Here for a start we find those theories that define privacy as control over information. Such is the case with the influential definition by Westin: ‘Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others.’41 Similar to Westin’s definition is the one provided by Charles Fried, for whom privacy is ‘the control we have over information about ourselves’,42 However, this control can be understood in very broad terms. Iris Young thus writes: ‘The Private [is] what the individual chooses to withdraw from public view.’43 Control is here conceived as a retreat from visibility to the public eye. Finally, the notion of control appears in one further context, where privacy is defined in terms of concepts of closeness and intimacy, as exemplified by Julie Inness: ‘Privacy is the state of the agent having control over a realm of intimacy, which contains her decisions about intimate access to herself (including intimate informational access) and her decisions about her own intimate actions.’44
What all these various approaches based on the concept of control have in common is that they each only posit one particular aspect of control and thus describe the concept of privacy too narrowly: as the control of information, as protection from the merely ‘public view’, as located only in contexts of intimacy. This means that there are crucial dimensions of the concept, as laid out above, that are left out of account in each of these definitions. This is not the case in the final group of proposed definitions, for here we find theories of privacy that aim both at a general meaning of the term and at a specific definition. Sisela Bok, for example, defines privacy as ‘the condition of being protected from unwanted access by others – either physical access, personal information or attention. Claims to privacy are claims to control access.’45 Privacy is here defined as a condition in which one is protected in various respects from undesired intrusions by other people. Even if the notion of a ‘condition’ here seems an inappropriate restriction (for one’s home is not a condition), such a broadly based definition still seems most likely to cover the whole range of meaning of the concept of privacy.46
In accordance with such broadly based theories, I now want to propose the following definition of privacy: Something counts as private if one can oneself control the access to this ‘something’.47 Conversely, the protection of privacy means protection against unwanted access by other people. The term ‘access’ can here have both the direct, concrete, physical meaning, as when I demand to be able myself to control the access to my home, but it can also be meant metaphorically. This metaphorical sense refers both to the control I have over who has what access to knowledge about me, such as who knows which (relevant) data about me, and the control I have over which people have ‘access’ in the form of the ability to interfere or intervene when it comes to decisions that are relevant to me. The weight of this definition lies with the ideas of control and of unwanted access, and not, therefore, with the idea of a separation between the particular individual on the one hand and a public realm of all other people on the other. The spatial metaphor or the metaphor of a realm is here only one aspect too. Moreover, the concept of ‘control’ also brings to light the inherent normative moment, for the term ‘private’ is not normally used in a purely descriptive manner, but always has prescriptive elements. The word ‘can’ must thus also be understood in the sense of ‘can and/or should and/or may’. Not always when I can in fact control the access to ‘something’ is this ‘something’ also ‘private’ (as when, for example, I have stolen someone else’s diary), and vice versa.
To provide a brief demonstration of the plausibility of this definition in terms of control of access, I now wish to look at some of the various uses of the term. Take a private room: this room is private if I can control access to it, if I can evade the observation and control of other people. Take data or information about me: here too it is reasonable to say that this is private if I can and/or should control access to it. The words ‘and/or’ are relevant here because I cannot of course always in fact control access, but the normative element in ‘should’ makes it clear that for the legitimate circulation of this information (whether medical data or simply prattle and gossip) my assent really should be necessary. Access is here thus used in a metaphorical sense. This is even clearer in the following case, which again concerns protection against unwanted access in a figurative sense, this time control over the ‘access to me’ in the sense of possibilities of objecting to my behaviour. Such protection is demanded and expected for actions that we describe as private, such as the question of what clothes I wear on the street or what church I attend. Protection against ‘unwanted access’ must here be understood metaphorically as protection against possibilities of objection or interference from others when it comes to certain private decisions, actions, or ways of behaving or living.
These dimensions of privacy, defined in this way as possibilities for exercising control over ‘access’, can now be interpreted as three ways of describing the normativity of privacy. I speak of decisional privacy when we claim the right to protection from unwanted access in the sense of unwanted interference or of heteronomy in our decisions and actions. I speak of informational privacy when people claim the right to protection against unwanted access in the sense of interference in personal data about themselves, in other words access to information about them that they have no desire to see in the wrong hands.48 And I speak of local privacy in a completely non-metaphorical sense when we claim the right to protection against the admission of other people to spaces or areas. Violations of a person’s privacy can be defined, therefore, in these three ways: as illicit interference in one’s actions, as illicit surveillance, as illicit intrusions in rooms or dwellings.49
Such a definition of privacy must be understood as conventional. Nothing belongs ‘by nature’ to the realm of the private. The dividing line between what is to be regarded as public and what as private is a constructed one and has not been laid down once and for all. In liberal societies, the boundaries themselves are open to discussion and thus also the relationship between the two ‘realms’. Even so, such societies have certain conventionally defined realms that are considered private at a culturally very deeply ingrained level, realms of ‘prescribed’ privacy, which have to do in particular with the bodily functions and in general with the exposure of one’s own body50
Against this background of meaning and definition, I now want to take the one final step of briefly touching upon the question that will become a focus of attention in what follows, ‘why do we value privacy?’, and in so doing conclude for the time being our overview of the debates about the concept of privacy. This question too is given many different answers in the literature, answers that refer to its intrinsic value, to the constitutive protection of intimate relationships, or to the protection of personhood. And there is a range of approaches that establish a connection – of varying degrees of closeness – between the concepts of privacy and freedom.51 I shall deal with the various problems associated with these approaches in detail below. Here I only want to outline what is to follow. What I shall try to explain is that we regard privacy as valuable because we regard autonomy as valuable, and because autonomy can only be lived out in all its aspects and articulated in all its senses with the help of the conditions of privacy and by means of rights and claims to privacy. If the telos of freedom is conceived as being able to lead an autonomous life, then spelling out the conditions for such an autonomous life brings to light that civil liberties alone are not sufficient for the protection of autonomy, but that autonomy is reliant upon these civil liberties being substantialized in rights and claims regarding the protection of privacy. A person’s autonomy can be violated or impaired in ways that do not directly bear upon the civil liberties themselves, and it is because of this possibility that people are dependent in their autonomy upon the protection of privacy.
The theory of privacy with which we will be dealing in what follows is grounded within a particular political and philosophical framework, namely liberalism. For liberalism, the distinction between a public and a private realm is not just any old distinction but a constitutive one, for this separation expresses the notion – fundamental to liberalism – of the protection of individual freedom and the autonomy of persons in the face of inadmissible interference or regulations on the part of the state.52 With these reflections on the concept and the theory of privacy, my aim is also to make a contribution to the self-understanding of liberalism and the internal make-up of liberal democracy. For this reason, I want to draw a rough outline of the sort of liberalism and liberal democracy that will form the background to what follows.
The current theories of liberalism or liberal democracy can be described as a ‘family’.53 But the question is then what characterizes the family, what are the prominent squabbles within the family, and who does not belong (entirely) to this family and why not. I shall trace these points very briefly and in the process attempt to sketch the concept of an egalitarian liberalism presupposed in the following chapters.54
Liberty, equality, neutrality of the state, and democracy can unquestionably be identified as the four basic pillars of any liberal theory.55 Within the family there are arguments firstly about which of these pillars forms the essential foundation for liberal theory, and above all which of the first two characteristics, liberty or equality, takes first place in the list of liberal priorities. This question is in turn connected in a general sense with various strategies for grounding a liberal theory.
Let us take a brief look at the four pillars in more detail, firstly at liberty. All liberal theories in equal measure assert the precedence of a particular set of basic individual rights as individual civil liberties56 In essence, the type of rights at issue here has not changed since Hobbes or at least since Locke, Kant, Constant and Mill, even if the area of application has.57 Irrespective of whether one takes Immanuel Kant’s classical formulation or John Stuart Mill’s, the fundamental idea of negative civil liberties is basically the same, that is that individual rights are necessary to protect the (modern) idea of autonomy and freedom in the face of inadmissible intrusions from the state and society in general. If the idea of individual freedom is that we each in our own way pursue our own particular notion of the good, this does not in itself necessarily tell us anything when it comes to spelling out the meaning of the concept of freedom in concrete terms: both the characterization of the fundamental idea and the list of civil liberties are sufficiently general to incorporate competing substantializations of the concept. Borderline cases occur where the concept of individual freedom is bounded by communitarian aims.58 Further below I shall delineate a richer and more concrete concept of freedom – freedom as autonomy. For this preliminary characterization of liberalism, however, this is not yet necessary.59
Let us now turn, therefore, to equality. With respect to the problem of equality, two levels can be distinguished. On a first level, equality denotes something akin to Ronald Dworkin’s fundamental principle that all persons be treated as equals. This much is accepted by every liberal theory.60 Over and above this, however, a stronger, more controversial postulate of equality can be described, which seems nonetheless to follow from this first one.61 Depending on how strongly the first is interpreted, there are two paths that can be taken. In the first case, the concept of equality can be taken as one’s starting point – ‘liberalism based on equality’62 – and liberties, rights and the neutrality of the state understood as ways of securing and realizing this original idea. As we know, this path is the one taken by Dworkin.63 The other approach takes the idea of individual liberties as the basis for liberalism, yet then sets a limit to this principle in the form of the first principle of equality. The idea here is that formally securing (equal) liberties alone is not sufficient to meet the demands of the principle of equality. As we know, this path is the one taken by John Rawls and Jürgen Habermas. Indeed, this is how Rawls grounds the principle of the equal ‘worth of liberty’ in conjunction with what he terms the difference principle,64 while for Habermas it is social rights that have the corresponding function of securing substantially equal liberties as opposed to a purely formal equality of liberties. In Dworkin, by contrast, the postulate of equality determines liberal theory through the idea of equality of resources right from the outset.65
It might be said, therefore, that the differences within the liberal camp refer to differences regarding strategies for grounding the theory but not necessarily regarding the consequences for liberal politics. I here want to underline the point – in the form of an affirmation rather than a substantiation – that it is precisely because of the equal importance granted by liberal thought to freedom and equality that the relation between the two must be understood not as one of rivalry but rather as mutual elucidation. In this spirit, Jeremy Waldron writes that ‘a commitment to equal freedom is not a compromise between freedom and equality. What “equality” does in that formula is to pin down the form of our commitment to freedom; and what “freedom” does is to indicate what it is that we are concerned to equalize.’66 This is of course still too general to be able to give an exact answer to the question ‘equality of what?’ But it provides a starting point for considering aspects in which the concepts can be compared. Feminist theory is also able to take up this idea of equal liberties, precisely because such an idea does not posit a patriarchal, gender-specific concept of ‘equality’.67
The third idea of liberalism follows from the first two: the principle of the neutrality of the state, in other words the principle of the separation between generally valid state regulations open to consent on the one hand and the particular individuals’ ideas of the good on the other.68 The distinction between private and public realms of life here finds its liberal locus classicus,69 for only when the state keeps out of ‘private affairs’ can the plurality of life-projects that follows from the idea of individual freedom genuinely be safeguarded. An initial distinction can here be drawn in broad terms between procedural neutrality on the one hand and neutrality of aims on the other.70 It can then be claimed that while procedural neutrality, at least in a weak sense of the term, can be guaranteed in a liberal state, the neutrality of its objectives remains problematic. We can, it is true, follow Rawls in arguing against explicit support for individual (or common) notions of the good.71 Yet the goals of the liberal state are still not neutral, firstly because they must always exclude certain anti-liberal ideas, and secondly because they always support collective ideas of the good determined by the cultural and historical situation of the state and its constitution. This is a point made by both communitarian and feminist criticism.72 This insight means that even in a liberal state that is in this sense weakly neutral there must be argument both about the interpretation of its neutrality and about the necessity and contents of collective ideas of the good.73 Yet such an insight is not without its consequences, for argument of this sort can only be liberal – in the sense of upholding equal liberties – if it does not always follow rules that as such prevent neutrality.
Let us turn, therefore, to the last of the four principles, the principle of democracy. The liberal guarantee of individual basic rights is valid in principle for three classes of rights – negative rights, social rights, and rights of political participation – as a result of which political liberty, or political participation, is secured at the same time as individual liberty.74 This idea too is undisputed within the field of liberal political theories. The only thing open to dispute is to what extent the rights of political participation are to be seen as foundational.75 What is important in our context, however, is the equal status of the two classes of rights and thus also the equal importance attached to securing equal individual and political liberties in a liberal democracy. A further point of dispute here is how the democratic procedures are to be described more fully and which form of democratic participation is to be posited.76 One final point of dispute is how the concept of representation is to be defined and in what way it is suitable for in turn calling into question the neutrality of liberal democracy.77
Such is the framework within which the following reflections are situated. In the process, I assume a concept of egalitarian liberalism with all the consequences that this has for a theory of democracy or democratic citizenship, and where the question of privacy directly touches upon these assumptions I shall return to them with arguments.78 Yet the outline of the liberal family that I have sketched implies limits to it as well: libertarian positions such as the one espoused by Robert Nozick, whose weighting of freedom and equality greatly favours the former at the expense of the latter, would not belong to this family.79 Problematic borderline cases include communitarian ideas such as those propounded by Michael Sandel, republican approaches such as Arendt’s and deconstructive positions such as Judith Butler’s.80 All of these, for different reasons, lie outside the liberal family merely in terms of their self-understanding. The fact that there are also good reasons based on the liberal principles outlined above for describing them at least as problematic cases is a point to which I shall return below. But always from the one perspective – the question of privacy and its value.
My interest in the present study is a normative conception of privacy in and for modern liberal societies. One of the reasons that this needs to be underlined is that the cultural differences in the coding of privacy, which exist even within the spectrum of the Western liberal democracies, will not be given specific treatment but play at most a marginal role. Because of this empirical and thematic restriction, however, I should here like to look at least briefly at the cultural differences in this coding as they come to light – in an exemplary and simplified form – between Germany and the US. This is worthwhile for the additional reason that looking at what is considered particularly worthy of protection or remarkable about privacy will provide us with a preliminary notion of the different sides of a liberal conception of privacy.
As regards cultural differences between Western and non-Western societies in terms of the coding of privacy, a great deal can be learnt from anthropology and ethnology.81 In contrast, there are surprisingly few comparative studies that focus on the differing cultural interpretations of privacy within the spectrum of modern liberal Western societies.82 To illustrate the different ways privacy is evaluated in the United States and Germany, it makes sense to take a look at the differences in some prominent legal cases. In the United States, the accent concerning what counts as private and thus as worthy of protection is on the ‘right to be left alone’,83 a right to be left in peace by the state or public society in the most important matters of one’s personhood in order to be able to make decisions and act in accordance with one’s own wishes. The most important and best-known legal verdict in this context is the legalization of abortion of 1973. In a famous formulation, this ruling says that the ‘right to privacy’ is ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’.84 Even though it was and still is a matter of controversy precisely which constitutional law the right to privacy – which is not itself mentioned in the Constitution – is derived from, and even though the ruling on abortion itself remains every bit as controversial as ever, not only in court, what is beyond dispute is that the US Supreme Court here recognizes a general right to privacy, which means at heart that when it comes to decisions and actions that fundamentally concern one’s individual personhood the state must keep its distance. The autonomy of persons in their decisions and actions is here coupled with a concept of privacy, ‘decisional privacy’, that is hardly customary in a German context. In Germany and Europe by contrast, it is inconceivable that a right to terminate a pregnancy be grounded upon a right to privacy. The concept of privacy plays virtually no part in these discussions.85
In Germany, the accent in the public – legal and social – discussions about privacy lies elsewhere. The paradigm for the debates here, as we know, is the Grosser Lauschangriff (The Great Bugging Operation), in other words the question of whether the state is allowed to monitor what its members say and do, and if so, to what extent. If privacy is under threat in Germany, then the accent is not so much on freedom from intrusions into one’s decisions and actions as on freedom from inspections of one’s daily life. Protection of the private sphere is thus called for when people see themselves as threatened in their day-to-day selfhood, as occurs when they consider themselves vulnerable to possible voyeurs, whether state snoopers or individual peeping Toms. This difference in the way privacy is coded in the United States and in Germany (or Europe) comes to light not only, for example, in the differences in the way private spaces are protected from observation,86 but is also manifest in the jurisprudence concerning data protection, which is completely different in Europe and the US. There is no law in the United States that would correspond to the strict European Union directive on the protection of informational data.87
This difference can be further illustrated by the distinct jurisprudence with respect to the Recht am Bild (‘the right over pictures of oneself), for such a right exemplifies the significance of the protection of privacy in the public realm. Not surprisingly, and with logical rigour, the German Federal Supreme Court has conceded such a right over pictures of oneself, while a parallel suit in the US was unsuccessful. I shall here briefly cite the two verdicts, first the German one:
The plaintiff is the joint proprietor of a brewery in K. He is an amateur jockey, who takes part in horse shows. The defendant is the manufacturer of a pharmaceutical preparation which in the minds of broad segments of the population also serves to heighten sexual potency. For the marketing of this product in Germany, including K. among other places, she distributed a poster with the illustration of a show rider. The poster was based on an original photo of the plaintiff, taken by the press publisher S. at a horse show. The plaintiff had not granted his consent for the use of his picture.88
It is well known that the Federal Supreme Court found for the plaintiff. The publication of the picture, it ruled, constituted a ‘violation of the right over pictures of oneself’:
89