Privacy Rights/Philosophical Origins/Tradition contributions/Kantianism
What have religious and philosophical traditions contributed to our understanding of this right?
Kantianism
Even though Kant does describe privacy in very vague descriptions, Kant’s idea of the right to privacy is severely limited by the importance of the public sphere and the goals and laws set in place by the government and the public Kant’s idea of the private sphere stems from his emphasis on the moral relationships within the public that create a sense of wellbeing for society and the people there to allow everyone to pursue their own interests. In his essay titled “Perpetual Peace” Kant wrote that, “For in their external relations, they have already approached what the idea of right prescribes, although the reason for this is certainly not their internal moral attitudes. In the same way, we cannot expect their moral attitudes to produce a good political constitution; on the contrary, it is only through the latter that the people can be expected to attain a good level of moral culture. Thus, that mechanism of nature by which selfish inclinations are naturally opposed to one another in their external relations can be used by reason to facilitate the attainment of its own end, the reign of established right. Internal and external peace are thereby furthered and assured, so far as it lies within the power of the state itself to do so. We may therefore say that nature irresistibly wishes that right should eventually gain the upper hand” (Kant 1795, 113). Kant’s emphasis is on the peace of the community and the ways in which community control their own personal morality to maintain the community and avoid the problems that are likely to arise. Due to this, it might be reasonable to assume that Kant would say that the individuals' morals are private since they must sacrifice their ideals for the public standard set by the community, leaving the private realm the only space in which individuals can subscribe to their own ideas of the good life. Specifically, Kant would say that whatever passions people have should be subjected to the private sphere to maintain a certain level of peace and stability within society. Kant even adds that maintaining a private or “internal” sphere for selfish interests helps benefit both the public and the private sphere so that there is balance in both spheres and the people maintain the peace. For Kant, the relationship between the public and the private is dependent on the morals people hold to maintain a standard within the community and prolong a state of establishment, which requires creating some sort of separation between the two spheres. However, it should be noted that Kant places an emphasis on the public to suggest that its importance prevails above the importance of matters within the private sphere. Furthermore, Kant said that “ we cannot simply conclude by a reverse process that all maxims which can be made public are therefore also just, because the person who has decisive supremacy has no need to conceal his maxims. The condition which must be fulfilled before any kind of international right is possible is that a lawful state must already be in existence. For without this, there can be no public right, and any right which can be conceived of outside it, i.e., in a state of nature, will be merely a private right. Now we have already seen above that a federative association of states whose sole intention is to eliminate war is the only lawfol arrangement which can be reconciled with their freedom” (Kant 1795, 129). The idea of the “internal” is continued in his analysis of the state of nature in which there is only matters of the private sphere. However, when theorists reference the state of nature, they usually provide some remedy because they believe that the state of nature is imperfect and needs to be fixed for the betterment of society. Therefore, it might be reasonable to assume that Kant believes that this state of privacy needed to be fixed by creating a society in which people needed to create more public relations and establish a state that revolves around the public sphere and the interests for the public. This is not to say that he wants to get rid of the idea of privacy altogether, but it further shows his preference for the public sphere rather than the private sphere. When it comes to the government and the private sphere, Kant emphasizes the use of government as public actors acting for the public rather than public actors acting within their own private interests. He believed that the officials of the government are merely public figures that adhere to the morals established by society and because of this again, like most of society, they leave their private reasonings within the public sphere especially when making decisions for the people. Kant does paint some pictures of privacy within the realm of private property, but his idea of private property does not come without exceptions and limits when it comes to the boundaries between the private, the public, and the government. In The Metaphysics of Morals, Kant said that “this supreme ownership is only an idea of the civil union, designed to represent through concepts of right the need to unite the private property of all members of the people under a universal public owner; for this makes it possible to define particular ownership by means of the necessary formal principle of distribution (division of the land), rather than by principles of aggregation (which proceeds empirically from the parts to the whole). The principles of right require that the supreme proprietor should not possess any land as private property (otherwise he would become a private person), for all land belongs exclusively to the people it also has a well-authenticated objective reality which can easily be demonstrated from particular instances as they arise” (Kant 1797, 147). The reiteration of a private sphere for Kant is reimagined in the form of private property. For Kant, private property is the space in which individuals can live out their personal, private morals they had to leave behind to maintain public moral standards and public peace. The realm of private property is the space in which the government cannot interfere with the people and for Kant something the government cannot and should not acquire for themselves. If the government were to obtain their own private property, the government would become private individuals no longer invested in the public morals or the public peace they are to represent and enforce. It should be noted that Kant’s version of government is a federation of civil societies, reemphasizing the lack of power the government should have. Therefore, it is logical for Kant to believe that the government should not even own property since their role is minimized within the civil society in which the people and the public control most of the affairs. Kant’s decentralized government reinstates the idea that the higher ups within society should not be allowed to interfere with the lives of the people, leaving matters of civil society to the people based upon public morals rather than private interests. This creates a third power within society, namely the civil society that reigns over the government and the private individual as that is where all matters take place and are negotiated among the individuals of society rather than another power. In addition, Kant noted “A third kind of right is necessary for the preservation of the state-the right of inspection (ius inspectionis). This requires that no association which could influence the public welfare of society (publicum), such as an association of political or religious illuminati, may be kept secret; at the request of the police, it must not refuse to disclose its constitution. But only in cases of emergency may the police search anyone's private residence, and in each case, they must be authorised to do so by a higher authority” (Kant 1797, 149). Although the government is not as important as civil society as discussed before, it does not mean that Kant believes that it should not have any duties to protect the public peace and the public morals. For this reason, Kant grants the government some powers to protect such interests like the right to inspect or enter private realms. Although this seems contradictory of his ideas discussed earlier, it must be noted that Kant believed that individuals must not interfere with one another and have the liberty to act within their own selfish interests. To maintain this standard, Kant tasked the government with creating laws that would create a sense of freedom in which the individual has the right to do as they please until their actions interfere with others' right to freedom. This therefore is the reasoning behind allowing the government to intrude in the private homes of the individual when there is a reasonable assumption that doing so would benefit the community and its aim for peace. Again, this establishes a boundary between the public and the private realms, implying that the people have this implicit limited right to privacy, but the concept of privacy is subject to the strives towards public peace and individual liberty. Kant’s main emphasis is the peace of society and is willing to put the needs of society above the interests of the private individual to achieve his main objectives of peace and liberty. The lines between the private, the public, and the government are further blurred in his discussion of rights and the public and government punishment for going against the morals set forward by civil society. Again, in The Metaphysics of Morals, Kant said that “The real definition would run thus: “Right in a thing is a right to the private use of a thing, of which I am in possession — original or derivative — in common with all others.” For this is the one condition under which it is alone possible that I can exclude every others possessor from the private use of the thing (jus contra quemlibet hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it” (Kant 1797, 49). Kant’s main emphasis is the liberty one must do as they please without limiting the liberty those around him have as well. For that reason, Kant defines “right” or liberty above as a private matter because it is his to do whatever he wants with it. It is his and no one else to determine what an individual does or thinks so long as it does not interfere with the liberty of the people around him. This is a broad interpretation of privacy especially since Kant emphasizes the needs and the wishes of the public above the individual which contradicts the very idea of the individual having the right to do as he pleases. Other than private property, every human has the private possession of this right without interference from anyone else around him. However, Kant makes it known that there are limitations to these rights in the form of adhering to the public standards of morality and upholding the peace of civil society. It is in these instances that the idea of privacy is questioned and limited because it directly contradicts the actions and the intentions of the public and the government. Besides this private right Kant describes, he wrote that, “The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him. The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him. Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime (crimen), or also as a public crime (crimen publicum). Private crimes are dealt with by a civil court; public crimes by a criminal court. Embezzlement or speculation of money or goods entrusted in trade, fraud in purchase or sale, if done before the eyes of the party who suffers, are private crimes. On the other hand, coining false money or forging bills of exchange, theft, robbery, etc., are public crimes, because the commonwealth, and not merely some particular individual, is endangered thereby. Such crimes may be divided into those of a base character (indolis abjectae) and those of a violent character (indolis violentiae). Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator” (Kant 1797, 104-105). Within the discussion of the right to privacy in relation to civil society, Kant discusses the ways in which the government are allowed and permitted to interact with the community. He thus concludes that when it comes to the concept of punishment, when the crime is committed in which there are no victims, the civil society will decide a punishment and in the cases in which more than one individual is involved, the state will decide a punishment. This again subjects the individual to another power, namely civil society, in which the individual not only sacrifices his own morals to, but also determines the standards for society and punishments as they see fit. This distinction between the public and the government creates another relationship between what is considered public to society and what is considered public to the government. Kant’s ideas suggest that the individual may be private from the government, but the individual cannot be private from the public in which they report to. Individuals can keep their morals private from the public, but in the end, the interests and the actions of the individual are public and subject to judgement from civil society. Compared to the relationship between the government and the people, the relationship between civil society and the private individual shows that the public is more important since it is invested in the life of the individual and since the individual is expected to subject itself to the morals established by the public. Kant’s emphasis on the public sphere and the clear difference between the public, the government, and the private sector reinstate the point that although the right to privacy is stated and valued to keep the government out of personal affairs, there are exceptions to this rule crucial for restoring justice within society.
REFERENCES:
Kant, Immanuel. The Metaphysics of Morals. Edited by Mary Gregor. Cambridge University Press. 1996.
Kant, Immanuel. Kant Political Writings. Edited by Hans Reiss. Cambridge University Press. 1970.