Definition, Disagreement and the Value of Privacy

Andrew Roberts (Melbourne Law School)

The MLS Legal Theory Workshop is a discussion group for works in progress.  To register your interest and receive a copy of the paper for discussion, please contact the organiser.

Abstract

Privacy is a familiar concept, one that we consider to be important. Yet one need not venture too far into the substantial body of literature on the subject to discover that there seems to be fundamental disagreement over how privacy should be defined, why it is valuable, and consequently, about the scope of a right to privacy. I will suggest that attempts to define privacy will be influenced by attachment to a more fundamental or basic set of values or beliefs about the function or value of privacy. But while centuries of evolution in moral and political thought may have resulted in some degree of conceptual clarity in various competing political and moral theories, there is no consensus as to what values should be considered fundamental, or on how conflict between those values that are accorded this status ought to be resolved. In the absence of widespread agreement at this level of abstraction, attempts to find a generally accepted definition of privacy may well be futile. Privacy thought by some to be a state of limited access per se, and by others to be a condition in which a subject has control over access. In the first part of the paper I will suggest that a preference for one or the other of these conceptualizations will depend on whether the concept is taken to serve libertarian, liberal, communitarian or republican ends. The question I want to address in the second part of the paper is whether in light of philosophical indeterminacy courts required to consider privacy claims grounded in a constitutional right should attempt to define privacy and identify the normative foundations of the right.