Privacy Rights/Limitations - Restrictions/Permissibility

Privacy Rights

Have political theorists or philosophers discussed the permissibility of exceptions to this right?

Hobbes

Thomas Hobbes grappled with varying different situations of privacy. In Leviathan, it was mostly concerning places in which privacy and the public overlap. Generally, the public and commonwealth rights overtake those of an individual, especially in times of war, but there are some exceptions (Hobbes, 1651/ 1965, 130). For instance, one had the right to protect themselves with their private strength without being a threat to the commonwealth (Hobbes, 1651/ 1965, 138). Additionally, men could own private property and goods without interference from the Church of England and hold their own beliefs, as long as they didn’t go against the Church (Hobbes, 1651/ 1965, 250, 345).

In De Cive (On the Citizen), Hobbes presents an interesting dilemma – once the people form a state, the people no longer exist and instead become subjects (Hobbes, 1642/ 1651, 39-40). He suggests this leaves the ruler of the state with no responsibility to the subjects, able to harm them as there is no direct contract between the ruler and subjects (Hobbes, 1642/ 1651, 40). Without obligation, there is certainly little to prevent the ruler from imposing on subjects and revoking their privacy.

Locke

In 1689, John Locke discussed privacy in his Letters on Toleration. In this essay, Locke discusses privacy in relation to the Church of England. Generally, there is no privacy from the Magistrate in matters relating to the Church, however, in some instances, privacy is afforded to private matters (Locke, 1689/ 2010, 43, 46). For instance, Locke claims that one may take care of one’s health without much interference at all and prevents people from telling others what to believe in unless they are a clergyman (Locke, 1689/ 2010, 46. 129). Additionally, if one perceives an order by a magistrate to be unlawful, they can abstain from that law, and the magistrate cannot use their private judgment to impose laws but must refer back to God’s laws (Locke, 1689/ 2010, 58-59).

Kant

Immanuel Kant talks a lot about Enlightenment and the formation of states. Inherently, in the creation of these states, some rights are taken away to “[harmonize] with the freedom on everyone else” (Kant, 1970, 47, 55, 73). However, these rights that are given up usually have specific limitations (Kant, 1970, 45). The government in these societies could prevent some actions but, much like Warren & Brandeis later, felt that free-thinking and reasoning were of utmost importance in developing new ideas, and suggested they be protected (Kant, 1970, 59). However, Kant also suggests limiting the right to reason because it can still “expand to its fullest” while it is limited (Kant, 1970, 59).

In Warren & Brandeis’s terms of “the right to be let alone,” Kant, in his Theory and Practice, instead proposes the right to coercion, meaning all who are a part of the state are held to the same standard (Warren & Brandeis, 1890, 193; Kant, 1970, 75). This coercion is imposed uniformly on all subjects, but not the ruler (Kant, 1970, 75). As long as one was conforming to the laws, there was no reason to interrupt their actions, but once conformity was broken, there was a chance to impose and alter someone’s actions (Kant, 1970, 80). Kant recognizes that Hobbes feels differently, writing directly against Hobbes’ views as put forth in De Cive, in that the ruler has no obligations to the people and may treat them how he wishes – implying no right to be let alone (Kant, 1970, 84; Hobbes, 1651, 40).

Sieyes

In his essay titled Views of the Executive Means Available to the Representatives of France in 1789, Emmanuel Sieyes claims rights are inherent to a person. However, in What is the Third Estate, Sieyes claims that states may use the rights it was granted by the constitution and positive law to preserve the nation and community (Sieyes, 1788/ 2003, 136). In terms of privacy, these statements seem to imply that privacy may sometimes be taken away from some in the interests of the public. It is important to note, though, that these impositions may not go beyond the scope of the constitution in place (Sieyes, 1788/ 2003, 137).

Mill

John Stuart Mill, an English thinker, recognizes that English laws tended to interfere with privacy (Mill, 1859/ 2011, 15). However, Mill felt that separating church and state (“spiritual and temporal authority”) prevented more interferences of law within private life, somewhat facilitating what Warren & Brandeis would later call “the right to be let alone” (Mill, 1859/ 2011, 24; Warren & Brandeis, 1890, 193).

References:

Hobbes, T. (1651) . De cive (T. Hobbes, Trans.). UK Public Library. (Original work published 1642) . http://www.public-library.uk/ebooks/27/57.pdf

Hobbes, T. (1965) . Leviathan. Liberty Fund. (Original work published 1651) . http://files.libertyfund.org/files/869/0161_Bk.pdf

Kant, I. (1970) . Kant: Political writings (R.S. Reiss, Ed., 2003 ed.). Cambridge University Press.

Locke, J. (2010) . A letter concerning toleration and other writings (M. Goldie, Ed.). Liberty Fund. (Original work published 1689) . http://files.libertyfund.org/files/2375/ Locke_1560_ EBk_v6.0.pdf

Mill, J.S. (2011) . On liberty. Project Gutenberg. (Original work published in 1859) . https://www.gutenberg.org/files/34901/34901-h/34901-h.htm#Page_1

Sieyes, E. (2003) . Political writings (M. Sonenscher, Ed.). Hackett Publishing Company. (Original work published in 1788) .

Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C