Privacy Rights/Philosophical Origins/Theories
What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?
Positive Law
Positive law theory asks if the actions the government actor took would have been unlawful for a nongovernment actor to do in that jurisdiction (Baude & Stern, 2016, 1830, 1831) . In other words, what does the written law allow? For instance, the model holds something to be a search if the government uses special legal powers to gain access to information (Baude & Stern, 2016, 1832) . This model constrains the ability possessed by police to gain information from private parties while creating a predictable conception of privacy (Baude & Stern, 2016, 1856) . Its use in the United States aims to add clarity to privacy expectations that is not had in the Katz test (Baude & Stern, 2016, 1869) . Positive law theory was used in California v. Ciraolo and Florida v. Riley (Baude & Stern, 2016, 1867) .
Natural Law
Locke is one of the primary natural law theorists. In his Two Treatises on Government: Concerning the True Original Extent and End of Civil Government (Essay Two) he discusses some of these rights which implicitly concern privacy in the State of Nature. In Chapter II: Of the State of Nature, he recognizes in section 6 that the laws of nature prevent “harm[ing] another in his life, health, liberty or possessions” (Locke, 1832, 107). All of these categories can be linked to laws today which protect privacy: mainly constitutional law in various countries, but also, for instance, the United States Health Insurance Portability and Accountability Act (1996) .
Critical Legal Studies
Critical Legal Theorists believe law becomes intertwined with social issues causing each judge to have a somewhat different judgement in each case (Dworkin, 1977, 117). These differing torts and constitutional interpretations create varying implications in jurisdictions based on the weight precedents are given (Dworkin, 1977, 118). Dworkin recognizes that with this connection to social facts, the judiciary plays a bigger role in society (Waldron. 1999, 211). For instance, some judges may find a connection between the directly provided for protection of the right to liberty and implied right to privacy, while others may not (Dworkin, 1977, 117). Roberto Unger supports this example, writing in his essay ‘’Critical Legal Studies Movement’’ that some rights give individuals “a zone of unchecked discretionary action that others … may not invade,” reminiscent of Warren & Brandeis’s original claim to the right to privacy (Unger, 1983, 599).
Legal Positivism
Legal Positivism claims law depends on social facts, but the existence of law is not dependent on its merits or morals (Sevel & Leiter, 2010) . H. L. A. Hart, a famed positivist, claimed that “law should be bound by limits and respect citizen’s privacy” (van der Sloot, 1). Moreover, the state could not and should not regulate private conduct unless there was harm (van der Sloot, 1). Robert Burt claims Hart essentially follows Louis Brandeis’s “right to be let alone” (Burt, 2004, 14).
Legal Realism
Legal Realism is reading laws “in the light of the purpose and policy of the rule or principle in question” (Macauley, 2005, 371). As such, legal realism expects the law to be constantly changing based on social conditions (Hall, 2005, 452). Calo claims privacy law exemplifies legal realism because of all of the exceptions, shifts with technology, and meanings dependent on other values and rights (Calo, 2019, 34). Despite privacy law’s beginnings being rooted in legal realism, he recognizes that privacy scholars have not expressly used this legal theory (Calo, 2019, 34, 40, 48).
United States Constitutional Theorists
One would think defining the appearance of privacy rights in the United States Constitution to be easy, especially given the language of ‘penumbras’ used in Griswold v. Connecticut rather than citing one specific clause constitutional (Griswold v. CT, 1965, pars. 14-15). However, Scott Gerber demonstrated in his work Privacy and Constitutional Theory that all six of the constitutional theories of interpretation he presented can be used to find privacy rights in the Constitution (Gerber, 2000; Baker, 2004) .
Originalists: In his writing, Gerber (2000) posits that if an originalist interpreter wants to find privacy rights in the constitution, they can (167). Generally, those who do find privacy rights in the Constitution cite the Ninth Amendment (Gerber, 2000, 171). This is what Justice Arthur Goldberg cited in his Griswold concurrence and has been cited as such since James Madison wrote the amendment (Gerber, 2000, 171, 172).
Living Constitutionalists (US): Living constitutionalists allow for precedents to be called upon. It can be argued this is what was done in Griswold v. CT and other substantive due process decisions on privacy, such as Boyd v. US in 1886 (Gerber, 2000, 178). In the Griswold majority opinion, Justice William Douglas argued that the Supreme Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, 1965, par. 11).
Resources
Baker, T.E. (2004) . Constitutional theory in a nutshell. William & Mary Bill of Rights Journal 13(1), 57-123. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1245& context=wmborj Baude, W. & Stern, J.Y. (2016, May). The positive law model of the Fourth Amendment. Harvard Law Review 129(7), 1821- 1889. https://www.jstor.org/stable/44072348
Burt, R. (2004) . Moral offenses and same sex relations: Revisiting the Hart-Devlin Debate. Yale Law School Faculty Scholarship Series. https://digitalcommons.law.yale.edu/fss_papers/711/
Calo, R. (2019) . Privacy Law’s Indeterminacy. Theoretical Inquiries in Law 20(1), 33-52. https://doi.org/10.1515/ til-2019- 0001 Dworkin, R. (1977) . Taking rights seriously. Harvard University Press. Gerber, S. (2000) . Privacy and constitutional theory. Social Philosophy and Policy 17(2), 165-185. https://doi.org/10.1017/ S0265052500002156
Griswold v. Connecticut, 381 U.S. 479 (1965) . https://www.law.cornell.edu/supremecourt/text/381/479
Hall, E.L. (Ed.). (2005) . The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press. Locke, J. (2008) . Concerning the true original extent and end of civil government. In R. Hay (Ed.), The Works of John Locke: In 10 volumes (Vol. V). Cosimo Classics. Macaulay, S. (2005) . The new versus od legal realism: “Things ain’t what they used to be.” Wisconsin Law Review 2005( 2), 365-403. From https://media.law.wisc.edu/s/c_8/tg2md/new_versus.pdf Sevel, M. & Leiter, B. (2010) . Legal Positivism. Oxford Bibliographies. https://doi.org/10.1093/ OBO/9780195396577-0065 van der Sloot, B. (2017) . Privacy as secondary rule, or the intrinsic limits of legal orders in the age of Big Data. In M. Dehmer and F. Emmert-Streib (Eds.), Frontiers in Data Science. CRC Press. https://bartvandersloot.com/onewebmedia/Privacy%20as%20secondary%20rule.pdf Unger, R.M. (1983, Jan.). The Critical Legal Studies Movement. Harvard Law Review 96(3), 561-675. https://www.jstor.org/stable/1341032
Waldron, J. (1999) Law and Disagreement. Oxford University Press.