This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people’s freedom and equality provided by rights of political choice, association and expression, and can help to make sure that these are, (...) genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people's freedom and equality provided by rights of political choice, association and expression, and can help to make sure that these are, (...) genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of solitude, intimacy and confidentiality and shows that, so described, people have legitimate interests in privacy. These interests are both personal and political, and provide the grounds for two different justifications of privacy rights. Though both are based on democratic concerns for the freedom and equality of individuals, these two justifications for privacy (...) can be distinguished because the one is principally concerned with protecting the personal freedom and equality of individuals, while the other is principally concerned with their political equivalents. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, interpreting the content and justification of privacy rights in light of the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people's freedom and equality provided by rights of political choice, association and expression, and can help to make sure that these are, (...) genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This book explores the Janus-faced features of privacy, and looks at their implications for the control of personal information, for sexual and reproductive freedom, and for democratic politics. It asks what, if anything, is wrong with asking women to get licenses in order to have children, given that pregnancy and childbirth can seriously damage your health. It considers whether employers should be able to monitor the friendships and financial affairs of employees, and whether we are entitled to know whenever someone (...) rich, famous or powerful has cancer, or an adulterous affair. It considers whether we are entitled to privacy in public and, if so, what this might mean for the use of CCTV cameras, the treatment of the homeless and the provision of public facilities such as parks, libraries and lavatories. Above all, the book seeks to understand whether and, if so, why privacy is valuable in a democratic society, and what implications privacy has for the ways we see and treat each other. The ideas about privacy we have inherited from the past are marked by beliefs about what is desirable, realistic and possible which predate democratic government and, in some cases, predate constitutional government as well. Hence, this book argues, although privacy is an important democratic value, we can only realise that value if we use democratic ideas about the freedom, equality, security and rights of individuals to guide our understanding of privacy. (shrink)

According to Corey Brettschneider, we can protect freedom of religion and promote equality, by distinguishing religious groups’ claims to freedom of expression and association from their claims to financial and verbal support from the state. I am very sympathetic to this position, which fits well with my own views of democratic rights and duties, and with the importance of recognizing the scope for political choice which democratic politics offers to governments and to citizens. This room for political choice, I believe, (...) is necessary if people are to have any chance of reconciling the conflicting moral and political obligations they are likely to face, however idealized our conception of democracy or morality. Granted that no amount of personal and political choice will ever guarantee that we do not encounter tragic choices, and painfully conflicting moral demands, it is an important feature of democracy – or so I believe – that its rights reflect the importance of mitigating these conflicts so that people are able, as a rule, to act as they ought, so that they do not experience their moral sentiments, beliefs and capacities simply as grounds for recrimination, alienation and despair. I therefore believe that democracies have good reason not to force the consciences of the undemocratic and the intolerant, where it is possible to accommodate such people without threatening the rights of others. However, the fact that I share many of Brettschneider’s intuitions and beliefs does not mean that I share them all. In particular, I find his conception of democracy unduly narrow, and unduly based on a rather idealized conception of the American constitution which is unlikely to appeal to those whose conceptions of democracy are more republican, more socialist, more pragmatic and more international than his. I have explained these worries elsewhere and drawn out some of their implications for his arguments about privacy and judicial review. There is no need to repeat them here. I will also set to one side my worries about his uninflected, overly abstract and rather reified characterization of the State, in the hope that others will discuss this and that, in the end, a more nuanced conception of the State and a more lively appreciation of the conflicting people, institutions, histories and norms which make up most states, will prove consistent with his arguments. Finally, I do not propose to enter into a detailed discussion of the difficulties of Brettschneider’s overly abstract and reified conception of State ‘speech’ and ‘expression’ which, while motivated by the language of American constitutionalism, appears to cover pretty much anything a government might do, from raising and spending taxes, to accepting judicial interpretations of contested constitutional provisions, or to affirmatively pronouncing on the goals that will animate its legislative agenda and its aspirations for citizen’s lives. Again, while I would have wished for a more nuanced and analytical discussion of so central a concept as ‘expression’ and, in particular, expression by ‘the State’, I am uncertain that anything fundamental in Brettschneider’s account of citizen rights and duties would be altered in the process. Instead, then, I want to focus on points in Brettschneider’s argument that intrigue, and sometimes puzzle, me the most and where issues of nuance and clarification might make a substantial difference to our views of equality and religious freedom. (shrink)

Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, (...) we can meet the philosophical and political need for a distinctively democratic conception of privacy. This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government. Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens. It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one. As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature. The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society. In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality. Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy. This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy. In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy. The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government. These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy. Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women. That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so. This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right. However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy. (shrink)

Must privacy and freedom of expression conflict? To witness recent debates in Britain, you might think so. Anything other than self-regulation by the press is met by howls of anguish from journalists across the political spectrum, to the effect that efforts to protect people’s privacy will threaten press freedom, promote self-censorship and prevent the press from fulfilling its vital function of informing the public and keeping a watchful eye on the activities and antics of the powerful.[Brown, 2009, 13 January]1 Effective (...) protections for privacy, from such a perspective, inevitably pose a threat to democratic government via the constraints that they place on the press. Such concerns with privacy must be taken seriously by anyone who cares about democratic government, and the freedom, equality and wellbeing of individuals. But if it is one thing to say that privacy and freedom of expression cannot always be fully protected, it is another to suppose that protections for the one must always come at the expense of the other. After all, the economics of contemporary politics and journalism would seem to be partly responsible for our difficulties in protecting personal privacy while sustaining robust and informative forms of public discourse. [Moore, 2010, 10 -141]2 Most newspapers are loss-making businesses and the need to reduce those losses and, if possible, to turn a profit, make investigative journalism an increasingly expensive proposition as compared to both “comment” and more or less elevated forms of gossip. At the same time, politics has increasingly become the prerogative of a narrow group of people with access to the large sums of money necessary successfully to compete for high office. In those circumstances, the need for critical scrutiny is as important as it is difficult. Revising our ideas about privacy and its protection cannot alone reduce the tensions between freedom of expression and personal privacy typical of our societies, necessary though such revision may be. Moreover, this paper can only touch on some aspects of the ways in which we need to rethink our interests in privacy, in order adequately to reflect people’s diverse interests in freedom of expression, and the important role of a free press to democratic government. Nonetheless, I hope to suggest ways of thinking about people’s claims to privacy which can be generalised fairly readily, and can help us to think constructively about the nature, causes and solutions to some important social and political problems, even if, in its nature, philosophical analysis rarely tells us what to do. More specifically, this paper argues that people are entitled to keep some true facts about themselves to themselves, should they so wish, as a sign of respect for their moral and political status, and in order to protect themselves from being used as a public example in order to educate or to entertain other people. The “outing” - or non-consensual public disclosure - of people’s health records or status, or their sexual behaviour or orientation is usually unjustified, even when its consequences seem to be beneficial. Indeed, the paper claims, the reasons to reject outing, as inconsistent with democratic commitments to freedom and equality, are reasons to insist on the importance of privacy to freedom of expression. While a free press is of the utmost importance to democratic government, it is not identical with the free expression of individuals and, on occasion, the former may have to be constrained in order to protect the latter. [Barendt, 2007, 231]. Hence, the paper concludes, we should distinguish the claims of individuals to publish reports about their lives – even if this necessarily involves revealing the private lives of others – from journalistic claims to publish information about the sex lives of consenting adults. I will start by briefly situating my argument within a democratic approach to privacy, before using the “outing” of Oliver Sipple to examine people’s claims to privacy and their implications for freedom of expression and of the press. I will be assuming that some forms of privacy are legitimate, in order to focus more closely on the question of what information, if any, people may keep to themselves. (shrink)

Are rights to privacy consistent with sexual equality? In a brief, but influential, article Catherine MacKinnon trenchantly laid out feminist criticisms of the right to privacy. In “Privacy v. Equality: Beyond Roe v. Wade” she linked familiar objections to the right to privacy and connected them to the fate of abortion rights in the U.S.A. (MacKinnon, 1983, 93-102). For many feminists, the Supreme Court’s decision in Roe v. Wade (1973) had suggested that, notwithstanding a dubious past, legal rights to privacy (...) might serve feminist objectives, and prove consistent with sexual equality. By arguing that Roe’s privacy justification of abortion rights was directly responsible for the weakness and vulnerability of abortion rights in America, MacKinnon took aim at feminist hopes for the right to privacy at their strongest point. Maintaining that Roe’s privacy justification of abortion is intimately, and not contingently, related to the Supreme Court’s subsequent decision in Harris v. McRae, (1980) MacKinnon concluded that privacy rights cannot be reconciled with the freedom and equality of women, and so can have no place in a democracy.1 In Harris, the Supreme Court held that the State need not provide Medicaid coverage for abortions that are necessary to preserve the health, but not the life, of a pregnant woman, effectively depriving poor women of almost all state aid for abortions.2 Moreover, the Court’s subsequent decision in Bowers v . Hardwick (1986) appeared to confirm the truth of MacKinnon’s observation – though this case concerned gay rights, rather than abortion rights, and occurred several years after MacKinnon’s condemnation of Harris. -/- This paper examines MacKinnon’s claims about the relationship of rights to privacy and equality in light of the reasoning in Harris and Bowers. When we contrast the Majority and Minority decisions in these cases, it shows, we can distinguish interpretations of the right to privacy that are consistent with sexual equality from those that are not. This is not simply because the two differ in their consequences – though they do - but because the former, unlike the latter, rely on empirical and normative assumptions that would justify sexual inequality whatever right they were used to interpret. So while I agree with MacKinnon that the Majority’s interpretation of the right to privacy in Harris is inconsistent with the equality of men and women, I show that there is no inherent inconsistency in valuing both privacy and equality, and no reason why we must chose to protect the one, rather than the other. Indeed, an examination of MacKinnon’s article, I suggest, can help us to see why rights to privacy can be part of a scheme of democratic rights, and how we might go about democratising the right to privacy in future. To avoid confusion I should emphasise that my arguments are of a philosophical, not a legal, nature. Thus, I will be ignoring the specifically legal and constitutional aspects of MacKinnon’s article, and of the Supreme Court decisions, in order to bring their philosophical significance into focus. -/- . (shrink)

Recent developments in neuroscience create new opportunities for understanding the human brain. The power to do good, however, is also the power to harm, so scientific advances inevitably foster as many dystopian fears as utopian hopes. For instance, neuroscience lends itself to the fear that people will be forced to reveal thoughts and feelings which they would not have chosen to reveal, and of which they may be unaware. It also lends itself to the worry that people will be encouraged (...) to submit to medication or surgery which, even if otherwise beneficial, alters their brain in ways that undermine their identity and agency. As Kenneth Foster notes, neural implants can have surprising and unintended adverse effects, even when they help to mitigate the loss of bodily control associated with Parkinson’s disease, or help to provide hearing for children who would otherwise be profoundly deaf. While the risk of adverse outcomes are scarcely specific to neuroscience, he thinks that ‘These issues are perhaps more acute’ with the latter than with other medical interventions, ‘because they are intimately and fundamentally related to a person’s communication with the outside world’. [ 2006 196] -/- Neuroscience, like genomic science, then, is likely to create new ways of harming people. Many of these will involve violations of privacy. However, these are unlikely fundamentally to challenge the reasons to value privacy, or our ability to protect it in the foreseeable future. Rather, I would suggest, the major threat to privacy comes from the difficulty of determining its nature and value and when, if ever, efforts to protect it are justified. So I will start by examining some threats to privacy, and their implications for neuroscience, before turning to philosophical problems in understanding the nature and value of privacy, and the practical consequences of those philosophical difficulties. (shrink)

Privacy is gravely endangered in the digital age, and we, the digital citizens, are its principal threat, willingly surrendering it to avail ourselves of new technology, and granting the government and corporations immense power over us. In this highly original work, Firmin DeBrabander begins with this premise and asks how we can ensure and protect our freedom in the absence of privacy. Can—and should—we rally anew to support this institution? Is privacy so important to political liberty after all? DeBrabander makes (...) the case that privacy is a poor foundation for democracy, that it is a relatively new value that has been rarely enjoyed throughout history—but constantly persecuted—and politically and philosophically suspect. The vitality of the public realm, he argues, is far more significant to the health of our democracy, but is equally endangered—and often overlooked—in the digital age. (shrink)

This article is part of a symposium on property-owning democracy. In A Theory of Justice John Rawls argued that people in a just society would have rights to some forms of personal property, whatever the best way to organise the economy. Without being explicit about it, he also seems to have believed that protection for at least some forms of privacy are included in the Basic Liberties, to which all are entitled. Thus, Rawls assumes that people are entitled to form (...) families, as well as personal associations which reflect their tastes as well as their beliefs and interests. He seems also to have assumed that people are entitled to seclude themselves, as well as to associate with others, and to keep some of their beliefs, knowledge, feelings and ideas to themselves, rather than having to share them with others. So, thinking of privacy as an amalgam of claims to seclusion, solitude, anonymity and intimate association, we can say that Rawls appears to include at least some forms of privacy in his account of the liberties protected by the first principle of justice. -/- However, Rawls did not say very much about how he understands people’s claims to privacy, or how those claims relate to his ideas about property-ownership. This is unfortunate, because two familiar objections to privacy seem particularly pertinent to his conception of the basic liberties. The first was articulated with customary panache by Judith Thomson, in a famous article on the moral right to privacy, in which she argued that talk of a moral right to privacy is confused and confusing, because privacy rights are really just property rights in disguise. The second objection has long been a staple of leftist politics, and is that the association of privacy with private property means that privacy rights are just a mask for coercive and exploitative relationships, and therefore at odds with democratic freedom, equality and solidarity. If the first objection implies that Rawls is wrong to think that protection for privacy can be distinguished from protection of personal property, the second objection implies that Rawls cannot hope to protect privacy without thereby committing himself to the grossest forms of capitalist inequality. -/- In this paper I will not discuss Rawls’ views of property-owning democracy. However, by clarifying the relationship between claims to privacy and claims to property-ownership, I hope to illuminate some of the conceptual, moral and political issues raised by Rawls’ ideas, and by work on the concept of a property-owning democracy, which he inspired. As we will see, privacy-based justifications of private ownership are not always unappealing, and privacy is sometimes promoted, rather than threatened, by collective ownership. The conclusion draws out the significance of these claims for the idea of a property-owning democracy. (shrink)

this paper argues that people are entitled to keep some true facts about themselves to themselves, should they so wish, as a sign of respect for their moral and political status, and in order to protect themselves from being used as a public example in order to educate or to entertain other people. The “outing” - or non-consensual public disclosure - of people’s health records or status, or their sexual behaviour or orientation is usually unjustified, even when its consequences seem (...) to be beneficial. Indeed, the paper claims, the reasons to reject outing, as inconsistent with democratic commitments to freedom and equality, are reasons to insist on the importance of privacy to freedom of expression. While a free press is of the utmost importance to democratic government, it is not identical with the free expression of individuals and, on occasion, the former may have to be constrained in order to protect the latter. [Barendt, 2007, 231]. Hence, the paper concludes, we should distinguish the claims of individuals to publish reports about their lives – even if this necessarily involves revealing the private lives of others – from journalistic claims to publish information about the sex lives of consenting adults. I will start by briefly situating my argument within a democratic approach to privacy, before using the “outing” of Oliver Sipple to examine people’s claims to privacy and their implications for freedom of expression and of the press. I will be assuming that some forms of privacy are legitimate, in order to focus more closely on the question of what information, if any, people may keep to themselves. (shrink)

In Considerations on Representative Government, John Stuart Mill concedes that secrecy in voting is often justified but, nonetheless, maintains that it should be the exception rather than the rule. This paper critically examines Mill’s arguments. It shows that Mill’s idea of voting depends on a sharp public/private distinction which is difficult to square with democratic ideas about the different powers and responsibilities of voters and their representatives, or with legitimate differences of belief and interest amongst voters themselves. Hence, it concludes, (...) we should reject the assumption, which many of us share with Mill, that the secret ballot is justified only on prudential grounds and recognise how central privacy is to any democratic conception of citizenship and politics. (shrink)

Three recently published reports show to what extent democracy is losing ground in a global context increasingly characterized by authoritarianism and populism. The argument this articles proposes is that the deplorable state of democracies around the world is due to the neglect of substantial characteristics and sources of democracy, which are above all trust and solidarity. Democracy has three different, but interrelated sources that are built upon each other according to a lexical order. A democracy is first based upon political (...) rights, there is in an inherent liberal component to democracy. Second, a democracy requires trust among citizens and individuals that only some form of common identity is going to produce. Third, democracy is based upon strong forms of equality that are brought about by solidarity. The article comes to following conclusions: First, as the experience of Islamophobia and racism in Europe and authoritarianism in the Arab world shows, the concepts of illiberal democracy or majoritarianism currently promoted by strongmen around the globe do not stand for proper democratic political systems. Second, in our plural societies, neither thick nationalism nor strong multiculturalism does support the development of the democratic spirit. Third, Republicanism in Rousseau’s tradition is right that inequalities are the main cause undermining full democracies. A democracy requires the solidarity of the welfare state. (shrink)

Goodhart does not advocate that democracy is a human right that should be protected and promoted as such, but reconceptualizes democracy itself as "human rights".

ABSTRACT A new ‘political philosophy’ is indispensable to the ‘post-Corona world,’ and this paper tries to analyze the future of ‘liberal democracy’ in it. It shows that ‘liberal democracy’ faces a ‘global crisis’ that has begun before, but the ‘novel Coronavirus pandemic,’ as a setback for it, strongly encourages that crisis. ‘Liberalism’ and ‘democracy,’ which had long been assumed by ‘political philosophers’ to go together, are now becoming decoupled, and the ‘liberal values’ of ‘democracy’ are eroding. To find why and (...) how, this paper analyzes ‘authoritarianism,’ ‘totalitarianism,’ and the evils and propensities of ‘democracy’ that bring about further erosions of ‘liberal values.’ There may be difficult trade-offs to be made between ‘liberal’ and ‘authoritarian’ ‘values’ - and, after the experience of ‘Coronavirus,’ this paper shows the ‘illiberal or authoritarian democracy’ may become stronger. -/- KEYWORDS: democracy, liberalism, liberal democracy, illiberal democracy, the novel Coronavirus pandemic, Covid-19, authoritarianism, totalitarianism. -/- EXTENDED ABSTRACT For almost a century in West, ‘democracy’ has meant ‘liberal democracy’-a political system marked not only by ‘free and fair elections,’ but also by ‘liberal values.’ ‘Liberalism’ applied to the problem of the limits of the criminal law would require commitment to the presumption in favor of ‘liberty.’ If the word ‘liberal’ is to have any utility in this context, it should refer to one who has so powerful a commitment to ‘liberty’ that she is motivated to limit the number of acknowledged liberty-limiting or coercion-legitimizing principles as narrowly as possible. So, she only believes in ‘harm-principle’ as the morally relevant reason for criminal prohibitions. ‘Offense principle’ and ‘paternalistic’ and ‘moralistic’ considerations, when introduced as support for penal legislation, have no weight at all. So, it means ‘autonomy’ and ‘self-regarding vs. other-regarding actions distinction’ based on which the human is the owner of her mind and body and everything consenting adults do is beyond the realm of morality and law. It leads to ‘individual’ ‘basic rights and liberties’ such as ‘basic rights and liberties’ of ‘speech,’ ‘religion,’ and ‘property’ and ‘collective’ ‘basic rights and liberties’ such as ‘basic rights and liberties of assembly,’ ‘civil society,’ ‘political pluralism,’ ‘democratic institutions,’ and ‘non-governmental organizations.’ ‘Liberalism’ also believes in ‘equality of conditions, ‘equal and free participatory rights in political decision making,’ and ‘collective self-governance.’ It also believes in the ‘rule of law,’ a ‘separation of powers,’ and ‘checks and balances.’ However, even under fair and free elections, the elected leaders can be ‘populists,’ ‘ultra-nationalists,’ ‘racists,’ ‘fascists,’ and ‘authoritarians’ who do not respect ‘inviolable basic rights and liberties,’ and suppress ‘minorities.’ Democratically elected leaders can routinely ignore constitutional limits on their power and deprive their citizens of ‘basic rights and liberties.’ The two strands of ‘liberal democracy’ have been coming apart in the world, and the ‘liberal’ elements of ‘democracy’ have been fraying and eroding even before the ‘novel Coronavirus pandemic.’ Even before the Coronavirus hit, there was already much discussion of a crisis of ‘liberal democracy.’ In particular, there has been a debate about whether ‘liberalism’ and ‘democracy,’ which had long been assumed to go together, were becoming decoupled. This paper shows ‘liberal democracy’ faces a ‘global crisis’ that had begun before the ‘novel Coronavirus pandemic.’ It also analyzes ‘authoritarianism,’ ‘totalitarianism,’ ‘liberalism,’ and ‘democracy’ and shows that Covid-19 is a setback for ‘liberal democracy.’ What is striking about the current moment is that many of the ‘liberal’ elements of ‘democracy’ are so far holding up under immense pressure. ‘Illiberal democracies’ seemed to be emerging in many countries. This model of ‘illiberal democracy,’ in which elections continue to be held but some individual rights and liberties are curtailed, may emerge stronger from this new crisis. In that sense, the ‘pandemic’ may become a challenge not only to ‘democracy’ as such but also to ‘liberal democracy’ in particular – in other words, a system of popular sovereignty together with guaranteed basic rights, such as freedom of association and expression and checks and balances on executive power. ‘Authoritarian’ procedures may succeed in mitigating the spread of the ‘Coronavirus,’ but the world now faces another problem: that when the virus recedes, many ‘liberal democracies’ will be far less ‘liberal’ or ‘democratic’ than they were before. In times of crisis, ‘liberal values’ have been ignored temporarily in the name of executive power. However, the ‘temporary’ can become ‘permanent.’ In addition, if citizens lose their faith in the legitimacy of ‘liberal democracy’ as the best form of government, and think ‘liberal democracy’ cannot function effectively during a crisis, and ‘authoritarian regimes’ manage the crisis more decisively, the world will slide towards ‘illiberal or authoritarian democracy,’ and many ‘liberal democracies’ will be at grave risk of failure. There may now be difficult trade-offs to be made between those basic rights and security - and, after the experience of Covid-19, many citizens may choose security. (shrink)

Democracy has been justified as the political system whose citizens are sovereign, which is to say most free or most equal in their political experience, participation or consent, and most likely to be benefited by economic freedoms. Most importantly, democracy is recommended as that form of government which gets things more right than any other form of government. But this traditional view, and also more recent qualifications of this view, is simply inadequate, refuted and rendered nonsensical by very real electoral, (...) wealth, income and power inequalities in democratic societies. Nevertheless, it is this kind of hierarchic democracy, like those of the United States and the United Kingdom, whose systems of government are exactly not true to the idea that two heads are better than one and more heads better than two, which reaches to judgements about Palestine, 9/11, Iraq, 7/7 and about all that is to come after those things. (shrink)

Democracy has been justified as the political system whose citizens are sovereign, which is to say most free or most equal in their political experience, participation or consent, and most likely to be benefited by economic freedoms. Most importantly, democracy is recommended as that form of government which gets things more right than any other form of government. But this traditional view, and also more recent qualifications of this view, is simply inadequate, refuted and rendered nonsensical by very real electoral, (...) wealth, income and power inequalities in democratic societies. Nevertheless, it is this kind of hierarchic democracy, like those of the United States and the United Kingdom, whose systems of government are exactly not true to the idea that two heads are better than one and more heads better than two, which reaches to judgements about Palestine, 9/11, Iraq, 7/7 and about all that is to come after those things. (shrink)

This study explores freedom and equality as necessary constituents of a liberal democratic state. At the same time, equality and freedom conflict in various respects. It is examined how such conflicts may optimally be resolved while taking seriously the interests involved. These inquiries have far-reaching consequences for the justification of the liberal democratic state. Equal rights are generally considered to be an integral part of a liberal democratic state, but on what foundation are such rights based? Various attempts have been (...) made to provide such a foundation from a moral framework. Some important and influential positions are examined critically and an alternative perspective is offered. "Equality" is approached straightforwardly, without appealing to obscure notions while seeking an outcome that may universally be accepted. Rationality is an important feature in this respect. The question to what extent freedom should be allowed to citizens is another important issue. Granting citizens freedom is beneficial for the liberal democratic state as a whole and for citizens themselves. The limits of freedom must, however, be defined carefully. The search for a simple solution is balanced against the need to do the complexities of individual cases justice. In addition, it is not the task of a liberal democratic state to influence people’s convictions concerning equality ; only equal treatment should be guaranteed. (shrink)

Many political theorists today deny that citizenship can be defended on liberal grounds alone. Cosmopolitans claim that loyalty to a particular state is incompatible with universal liberal principles, which hold that we have equal duties of justice to persons everywhere, while nationalist theorists justify civic obligations only by reaching beyond liberal principles and invoking the importance of national culture. In Liberal Loyalty, Anna Stilz challenges both views by defending a distinctively liberal understanding of citizenship. Drawing on Kant, Rousseau, and Habermas, (...) Stilz argues that we owe civic obligations to the state if it is sufficiently just, and that constitutionally enshrined principles of justice in themselves--rather than territory, common language, or shared culture--are grounds for obedience to our particular state and for democratic solidarity with our fellow citizens. She demonstrates that specifying what freedom and equality mean among a particular people requires their democratic participation together as a group. Justice, therefore, depends on the authority of the democratic state because there is no way equal freedom can be defined or guaranteed without it. Yet, as Stilz shows, this does not mean that each of us should entertain some vague loyalty to democracy in general. Citizens are politically obligated to their own state and to each other, because within their particular democracy they define and ultimately guarantee their own civil rights. Liberal Loyalty is a persuasive defense of citizenship on purely liberal grounds. (shrink)

This paper examines MacKinnon’s claims about the relationship of rights to privacy and equality in light of the reasoning in Harris and Bowers. When we contrast the Majority and Minority decisions in these cases, it shows, we can distinguish interpretations of the right to privacy that are consistent with sexual equality from those that are not. This is not simply because the two differ in their consequences – though they do - but because the former, unlike the latter, rely on (...) empirical and normative assumptions that would justify sexual inequality whatever right they were used to interpret. So while I agree with MacKinnon that the Majority’s interpretation of the right to privacy in Harris is inconsistent with the equality of men and women, I show that there is no inherent inconsistency in valuing both privacy and equality, and no reason why we must chose to protect the one, rather than the other. Indeed, an examination of MacKinnon’s article, I suggest, can help us to see why rights to privacy can be part of a scheme of democratic rights, and how we might go about democratising the right to privacy in future. To avoid confusion I should emphasise that my arguments are of a philosophical, not a legal, nature. Thus, I will be ignoring the specifically legal and constitutional aspects of MacKinnon’s article, and of the Supreme Court decisions, in order to bring their philosophical significance into focus. (shrink)

This chapter examines the role of law and rights for democracy in the context of republicanism. It considers the neo-republican defense of judicial review and its attempt to secure individual rights, along with the ‘adjudication’ of political and social conflicts in courts, civic equality and the political struggle among citizens as an essential component of republican democracy. It highlights the link between the very nature of a rights claim and a democratic process that ensures political equality and relates this democratic (...) argument for rights to the republican notion of liberty as nondomination. The chapter also discusses liberalism, rights and freedom as non-interference and concludes by arguing that the association of rights and democracy must be actualised within a real democratic process characterised by one person one vote, majority rule and regular elections between rival political parties. (shrink)

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This (...) article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices. (shrink)

In "Kant on Freedom and the Appropriate Punishment," the author begins by noting that in The Metaphysics of Morals , Kant asserts that a wrongdoer should be given a punishment that is similar to his wrongdoing. He then makes two interpretive claims with regard to this assertion.First, he claims that the best way to understand this assertion in the context of other things Kant says is that the state is obligated to punish a wrongdoer in a way that imposes on (...) the wrongdoer an amount of suffering equal to what he caused and through an action that is similar in type to the wrongdoer's offense. The argument in support of this claim occurs in section II and rests on two more specific interpretive claims about Kant's theory: that state punishment should resemble the wrongdoer's acts and should involve the same level of suffering as was involved in the original wrongdoing and that punishment in accordance with these constraints is an obligatory duty.Second, the author claims that on Kant's theory this principle of appropriate punishment is justified because it restores equality in the distribution of freedom for members of the state. The argument in support of this claim occurs in section III. The argument rests in part on Kant's justification of the state and coercion in terms of the value of equalized freedom. By applying this same justification to Kant's principle of appropriate punishment, the author claims to be able to account for the principle as well as to relate the principle to Kant's political theory. Der vorliegende Beitrag beginnt mit der Feststellung, daß Kant in der Metaphysik der Sitten geltend macht, ein Übeltäter solle eine Bestrafung erleiden, die mit seiner Tat vergleichbar ist. Im Hinblick auf diese Forderung Kants werden zwei Thesen aufgestellt.Erstens wird behauptet, die genannte Forderung sei vor dem Hintergrund sonstiger Äußerungen Kants am besten dahingehend zu verstehen, daß der Staat verpflichtet sei, einen Übeltäter in einer Weise zu bestrafen, die diesem ein Maß von Leid zufügt, das dem von ihm selbst verursachten gleichkommt. Geschehen müsse dies durch eine Handlung, die in ihrer Art dem vom Übeltäter begangenen Verbrechen entspricht. Die Begründung dieser These erfolgt in Abschnitt II und stützt sich wiederum auf zwei mehr in die Einzelheiten gehende Thesen zu Kants Theorie: Staatliche Bestrafung sollte den Handlungen des Übeltäters ähneln und Leid in einer Größenordnung mit sich bringen, wie es auch die ursprüngliche Tat zur Folge hatte. Bestrafung in Übereinstimmung mit diesen Bedingungen ist eine Pflicht.Zweitens wird die Auffassung vertreten, dieses Prinzip angemessenen Strafens sei im Rahmen der Theorie Kants gerechtfertigt, weil es für die Mitglieder des Staates die Gleicheit in bezug auf die Verteilung der Freiheit wiederherstelle. Die Begründung dieser These findet sich in Abschnitt III und beruht zum Teil auf Kants Rechtfertigung von Staat und Zwang durch den Verweis auf den Wert gleichmäßig verteilter Freiheit. Die Übernahme eben dieser Rechtfertigung auch für Kants Theorie angemessenen Strafens soll sowohl dazu dienen, das Prinzip selbst zu begründen, als auch dazu, es in Kants politische Theorie einzuordnen. (shrink)

The overall aim of the article is to analyse how the universal right to education have been built, legitimized and used. And more specifically ask who is addressed by the universal right to education, and who is given access to rights and to education. The first part of the article focus on the history of declarations, the notion of the universal right to education, emphasizing differences in matters of detail—for example, the meaning of ‘compulsory’, ‘children’s rights’ or ‘parents’ rights’—and critically (...) examining the right of the child and the right of the parent in terms of tensions between ‘social rights’ and ‘private autonomy rights’. Despite differences in detail, the iterations of the universal right to education do share to the full in the idea of education as such. In the second part the attempt to scrutinize the underlying assumptions legitimizing the consensus on education, focusing again on the notion of the child. In conclusion I argue that a certain notion of what it is to be a human being is inscribed within the circle of access to rights and education. These notions of what it means to be a child, a parent, a citizen or a member of the ‘human family’ are notions of enlightenment and humanity and, to my understanding, aspects of how democracy is configured around freedom, equality and fraternity. (shrink)

In this book, Carol Gould offers a fundamental reconsideration of the theory of democracy, arguing that democratic decision-making should apply not only to politics but also to economic and social life. Professor Gould redefines traditional concepts of freedom and social equality, and proposes a principle of Equal Positive Freedom in which individual freedom and social co-operation are seen to be compatible. Reformulating basic conceptions of property, authority, economic justice and human rights, the author suggests a number of ways in which (...) these principles could be realised in social institutions. She also discusses such issues as democratic control of technology, the nature of democratic personality, and the question of democracy in international relations. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Force and Freedom: Kant’s Legal and Political PhilosophyAlyssa R. BernsteinArthur Ripstein. Force and Freedom: Kant’s Legal and Political Philosophy. Cambridge, MA-London: Harvard University Press, 2009. Pp. xiii + 399. Cloth, $49.95.This superb, exemplary account of Immanuel Kant’s legal and political philosophy is essential reading not only for Kant scholars, but also for political philosophers and philosophers of law. Lucidly reasoned and written with crystalline clarity, the book is (...) both accessible to non-specialists and a pleasure to read. Ripstein reveals the coherent, systematic structure of thought in Kant’s obscurely written Doctrine of Right, and goes beyond illumination to defense and development of Kant’s conception of equal freedom. In the course of doing all of this, he not only presents Kant in historical context, but also brings to light important differences between Kant’s views and those of other political philosophers and philosophers of law, including John Locke, John Stuart Mill, H. L. A. Hart, and Ronald Dworkin, often enriching the discussion by referring to decisions or arguments made by courts in the U.S. or elsewhere. Ripstein shows that it is unjustifiable to exclude Kant from the primary canon of political philosophy, as is typical of current English-language teaching and scholarship.State governments both tell people what to do and force them to do as they are told; they also claim rights to do these things. Yet people claim the right to be free. Can these claims be consistent? Ripstein argues that Kant shows that they can. By working out the implications of the entitlement to be independent, one’s own master, and free from domination by others, Kant develops answers to the basic questions of political philosophy, addressing state legitimacy, the rule of law, political obligation, revolution, punishment, private property, taxation, and redistribution.The book begins with an overview chapter, followed by a chapter on what Kant calls the “innate right of humanity” in one’s own person, which is the right to be independent. Topics of private right are then addressed in three chapters, with topics of public right in five subsequent chapters, building on the previous ones. A central, bridging chapter explains Kant’s account of the transition from private right to public right, thus his account of political authority, which takes the form of arguments about the state of nature, its defects, and the need for the legal and political institutions of a state. The book ends with an appendix in which Ripstein explains the relation between the Universal Principle of Right and the Categorical Imperative.The right to independence is an original right in the sense that it does not require establishment by any affirmative act, Ripstein explains. Persons capable of acquiring rights through their actions must have the capacity to act in ways that have consequences for rights and thus for others’ conduct. Therefore, any system of rights must presuppose some basic moral capacities that do not depend on antecedent acts on the part of the person exercising them, and thus must presuppose the “innate right” to one’s own person. Each person’s entitlement to independence from another’s choice is the basis of all further rights. It sets restrictions on the capacity to acquire new rights and structures the rights [End Page 531] that each person can acquire. It also imposes duties on the state and restricts the means it can use for achieving its purposes. Equal freedom, understood in terms of restrictions on coercion, governs both private right and public right.In a system of equal freedom, each person is free to use his or her own powers, individually or cooperatively, in order to pursue his or her own purposes, and each person decides what ends to pursue with his or her own means. The right to such independence is an aspect of one’s status as a person in relation to other persons; within a system of reciprocal limits on freedom, it is an entitlement that restricts the conduct of others, consistent with everyone being subject to the same restrictions. It can be violated only by others’ conduct. The sole point of a system of equal freedom is... (shrink)

Knowledge of others, then, has value; so does immunity from being known. The ability to extend one's knowledge has value; so does the ability to limit other's knowledge of oneself. I have claimed that no interest can count as a right unless it clearly outweighs opposing interests whose presence is logically entailed. I see no way to establish that my interest in not being known, simply as such, outweighs your desire to know about me. I acknowledge the intuitive attractiveness of (...) such a position; but my earlier discussion concluded that the value of privacy is ease, and the value of knowledge is understanding - and it's not obvious that either outweighs the other. Nor is it obvious that the freedom and autonomy which result from the power to limit what others know is more significant than the freedom and autonomy which result from the power to extend one's knowledge. I believe the intuitive attractiveness of the belief that privacy values outweigh knowledge values lies in the entirely correct belief that a society without any privacy would be unpleasant. But a society without mutual knowledge would be impossible.I conclude therefore that there is no right to privacy nor to control over it. Nevertheless, each of these things is a good, and a good made possible (given the presence of other people) by social structures. A desirable society will provide both privacy and control over privacy to some extent. Nothing in my analysis helps determine what the proper extent is, nor what areas of life particularly deserve protection. Those who would argue that privacy and control over it are entailed by respect for persons should, I think, choose instead some particular areas central to being a person, to counting as a person, and then show how one is less likely to exercise one's capacities there fully without privacy or without control over it. Although Gerstein's attempt fails because he inaccurately defines intimacy as a kind of absorption and incorrectly opposes absorption with publicity, I think it is the kind of attempt which must be made. Furthermore, he has probably chosen the right area of life - if anything has a special claim to privacy it is probably the union between people who care for one another. The value of being together alone may be more significant than the value of being alone, if only because words and actions are public while thoughts are not. But I will not try to develop that argument here.In any case both privacy and control over it are social goods; on egalitarian grounds they should, ceteris paribus, be equally available to everyone. This helps explain the “dehumanizing” effect of institutions which provide no privacy at all- prisons and some mental institutions. It is not so much that the inmates are totally known; it is rather that those who know them are not so fully known by them; further, that the staff has a great deal of control over what they disclose of themselves, and the inmates very little. The asymmetry of knowledge in those institutions is one aspect of the asymmetry of power; the completely powerless are likely to feel dehumanized.My analysis also helps account for the wrongness of covert observation. It is not simply that the observer violates the wishes of the observed, for the question is whose wishes trump. The observer is violating the justified expectations of the observed: expectations supported by weighty social conventions. These have more moral weight than simple desires do. The peeping torn is violating a convention which structures the distribution of knowledge, a convention from which he benefits. Without it his own activities might well be impossible. He might be more easily caught; or his victim, less trusting, might choose houses without windows. More deeply, the thrill of what he is doing depends on the existence of the convention. Even morally permissible excitement - the suggestiveness of some clothing- would disappear without conventions about nudity. Presumably, too, there are elements of his own personal life for which he values his privacy. He is on grounds of justice obligated to observe the rule which makes his benefits possible.(Some claims to privacy result from personal predilections, rather than from convention. Parent describes a person who is extremely sensitive about being short, for instance, and does not want his exact height to be common knowledge. Parent, p. 346. The grounds for these claims are obviously different from those I've been discussing. The grounds are the moral obligation not to cause needless pain, or, if the information was given in confidence, to keep one's promises.) Although there is no right to privacy or to control over it as such, there is a right to equality of consideration and to a just distribution of benefits and burdens. To put it another way: there is no natural human right to privacy or to control over it; but a good society will provide some of each, and justice requires that the rules of a good society be observed. This paper was written during Joel Feinberg's 1984 NEH Summer Seminar. I am indebted to NEH for funding, and to Professor Feinberg and the other members of the seminar for helpful comments. (shrink)

The principle of fairness holds that individuals (beneficiaries) who benefit from a cooperative scheme of others (cooperators) have an obligation to do their share in return for their benefit. The original proponent of this principle, H. L. A. Hart suggests ‘mutuality of restrictions’ as a moral basis because it is fair to mutually restrict the freedom of both beneficiaries and cooperators; so called the fairness obligation. This paper explores ‘mutuality of restrictions’, which is interpreted as a right-based and an equality-based (...) justification of the fairness obligation. It is not argued whether both ways of justifying the obligation makes a success, but that they are in need of presupposing that there is a duty for beneficiaries to do their share in return for their benefit. This suggests turning to a duty-based justification of the fairness obligation. (shrink)

In Civil Rights and the Paradox of Liberal Democracy, Bradley Watson demonstrates the paradox of liberal democracy: that its cornerstone principles of equality and freedom are principles inherently directed toward undermining it. Modernity, beyond bringing definition to political equality, unleashed a whirlwind of individualism, which feeds the soul's basic impulse to rule without limitationincluding the limitation of consent. Here Watson begins his analysis of the foundations of liberalism, looking carefully and critically at the moral and political philosophies that justify modern (...) civil rights litigation. He goes on to examine the judicial manifestations of the paradox of liberal democracy, seeking to bring a broad philosophical coherence to legal decision making in the United States and Canada. Finally, Watson illuminates the extent to which this decision making is in tension with liberal democracy, and outlines proposals for reform. (shrink)

Selected by the Economist as one of the best books of 2020. -/- Privacy Is Power argues that people should protect their personal data because privacy is a kind of power. If we give too much of our data to corporations, the wealthy will rule. If we give too much personal data to governments, we risk sliding into authoritarianism. For democracy to be strong, the bulk of power needs to be with the citizenry, and whoever has the data will have (...) the power. Privacy, I argue, is not a personal preference; it is a political concern. I also argue that personal data is a toxic asset, and should be regulated as if it were a toxic substance, similar to asbestos. I call for a complete ban to the trade in personal data. The book is at once philosophical and political, and extremely practical and accessible. It discusses liberal democracy, equality, justice, and autonomy. It includes a chapter for policymakers, and one that addresses what ordinary citizens can do to protect privacy. Finally, the book covers the tension between privacy and public health in the context of covid19. -/- . (shrink)

In the United States and Europe, an increasing emphasis on equality has pitted rights claims against each other, raising profound philosophical, moral, legal, and political questions about the meaning and reach of religious liberty. Nowhere has this conflict been more salient than in the debate between claims of religious freedom, on one hand, and equal rights claims made on the behalf of members of the lesbian, gay, bisexual, and transgender community, on the other. As new rights for LGBT individuals have (...) expanded in liberal democracies across the West, longstanding rights of religious freedom -- such as the rights of religious communities to adhere to their fundamental teachings, including protecting the rights of conscience; the rights of parents to impart their religious beliefs to their children; and the liberty to advance religiously-based moral arguments as a rationale for laws -- have suffered a corresponding decline. Timothy Samuel Shah, Thomas F. Farr, and Jack Friedman's volume, Religious Freedom and Gay Rights brings together some of the world's leading thinkers on religion, morality, politics, and law to analyze the emerging tensions between religious freedom and gay rights in three key geographic regions: the United States, the United Kingdom, and continental Europe. What implications will expanding regimes of equality rights for LGBT individuals have on religious freedom in these regions? What are the legal and moral frameworks that govern tensions between gay rights and religious freedom? How are these tensions illustrated in particular legal, political, and policy controversies? And what is the proper way to balance new claims of equality against existing claims for freedom of religious groups and individuals? Religious Freedom and Gay Rights offers several explorations of these questions. (shrink)

Abstract: Democracy is regularly heralded as the only form of government that treats political subjects as free and equal citizens. On closer examination, however, it becomes apparent that democracy unavoidably restricts individual freedom, and it is not the only way to treat all citizens equally. In light of these observations, we argue that the non-instrumental reasons to support democratic governance stem, not from considerations of individual freedom or equality, but instead from the importance of respecting group self-determination. If this is (...) correct, it implies that a state may choose democracy, but its right to self-determination means that it is also free, in principle, to decide in favor of some nondemocratic alternative. (shrink)

Proponents of children's liberation (CL) argue that there are no morally relevant differences between children and adults. Consequently, special protective laws that limit children's freedom are unjustified, and should be abolished. Protectionists reject the premise of this argument, and hence also the conclusion. Proponents of CL mostly fix upon the capacity for instrumental reasoning as the criterion that should separate autonomous from non-autonomous individuals. I argue that most children are substantially worse at instrumental reasoning than most adults, and although drawing (...) a line between the two categories has an arbitrary element, outstanding exceptions on both sides can be justly accommodated. Furthermore, the capacity for instrumental reasoning is a necessary but not sufficient basis for equal rights. A morally decent society is more demanding of individuals than the skeptical or libertarian one that most plausibly grounds CL. To construct and live in such a society requires both prudence and morality. But there is evidence that children need protection and limits to develop these traits. So there are morally relevant differences between children and adults after all, and the argument from justice fails. The utilitarian arm of the argument also fails: because of these morally relevant differences, CL would have worse consequences than those envisioned by its supporters. Parents would lose important authority, and there would be more homeless children. Consequently, the gap between advantaged and disadvantaged persons would become larger and more irreversible. (shrink)

“An elegant and erudite exposé of the hypocrisies and evasions that infect the social and political thinking of our times.” ___ John Cottingham, Emeritus Professor of Philosophy, University of Reading __________________________________________________________________________________________________ -/- What’s so good about democracy? -------------------------------------------------------------------- Is any land rightfully ‘our land’? ------------------------------------------------------------------------ How private are our private lives? --------------------------------------------------------------------- Is ‘equal opportunities’ talk all nonsense? ------------------------------------------------------------ Do free markets set the people free? ----------------------------------------------------------------- Patriotism good? Nationalism bad? ---------------------------------------------------------------------- What’s so bad about discrimination? --------------------------------------------------------------------- Are the transgendered (...) right about gender? --------------------------------------------------------------- Does anyone believe in human rights? -------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- -------- -/- “With characteristic wit, Cave takes readers on a journey of discovery through a maze of perplexities. This is a profound book — those who survive the voyage will never think about liberal democracy and their lives as they did.” Dan Cohn-Sherbok, Professor Emeritus, Univ. of Wales -/- ---------------------------------------------------------------------------------------------------- -------------- -/- CONTENTS: ____________________________________________________________________________________________________ ___ -/- Prologue: On hiding what we know >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>> -/- 1 What’s so good about democracy? >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>> 2 How democracy lies >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>> 3 Freedom and discrimination: burqas, bikinis and Anonymous >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>> 4 Should we want what we want? >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>> 5 Lives and luck: can Miss Fortuna be tamed? >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>> 6 The Land of Justice >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>>>> > 7 Plucking the goose: what’s so bad about taxation? >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>> 8 ‘This land is our land’ >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>> 9 Community identity: nationalism and cosmopolitanism >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>> 10 What’s so good about equal representation? >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>> 11 Human duties – oops – human rights >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>> 12 Free speech: the Tower of Babel; the Serpent of Silence >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>> 13 Regrets, apologies and past abuses >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>> 14 ‘Because I’m a woman’: trans identities >>>>>>>>>>>>>>>>>>>>>>>>> >> 15 Happy Land >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>> Epilogue: In denial >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>>>> >> Notes and References >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>>>> Acknowledgements >>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>>Index> ;>>>>>>>>>>>>>>>>>>> -/- . (shrink)

Pursuing the Forms: Equality and Excellence in Plato's Republic and Symposium -- Equality and Excellence in the Education of Cyrus -- Splendid Equality in the Nicomachean Ethics: Munificence -- How Excellence Bows to Equality in Aristotle's Politics -- First Among Equals: Philosophers, Statesmen, and Citizens in Spinoza's Democracy -- Excellence and Equality in Fénelon's Telemachus -- The Seductive Danger of Equality and Excellence: The Moderating Wisdom of Montesquieu's Science of Ovidian Metamorphosis -- Equality and Excellence in Rousseau's Emile, Book III (...) -- Hegel's Evaluation of Liberalism: Equality of Rights without Human Excellence -- Democracy, Nobility, and Freedom: The Political and Moral Aesthetics of Tocqueville -- Does Kierkegaard Have a Concept of Excellence? -- Nietzsche: The Indignity of Equality -- The Good and the Excellent: John Rawls's Egalitarian Liberalism. (shrink)

Democracy is regularly heralded as the only form of government that treats political subjects as free and equal citizens. On closer examination, however, it becomes apparent that democracy unavoidably restricts individual freedom, and it is not the only way to treat all citizens equally. In light of these observations, we argue that the non‐instrumental reasons to support democratic governance stem, not from considerations of individual freedom or equality, but instead from the importance of respecting group self‐determination. If this is correct, (...) it implies that a state may choose democracy, but its right to self‐determination means that it is also free, in principle, to decide in favor of some nondemocratic alternative. (shrink)

: Does the rejection of pure proceduralism show that we should adopt Brettschneider’s value theory of democracy? The answer, this paper suggests, is ‘no’. There are a potentially infinite number of incompatible ways to understand democracy, of which the value theory is, at best, only one. The paper illustrates and substantiates its claims by looking at what the secret ballot shows us about the importance of privacy and democracy. Drawing on the reasons to reject Mill’s arguments for open voting, in (...) a previous paper by A. Lever, it argues that people’s claims to privacy have a constitutive, as well as an instrumental, importance to democratic government, which is best seen by attending to democracy as a practice, and not merely as a distinctive set of values. (shrink)

Immanuel Kant’s political philosophy has enjoyed renewed attention as an egalitarian alternative to contemporary inequality since it seems to uncompromisingly reassert the primacy of the state over the economy, enabling it to defend the modern welfare state against encroaching neoliberal markets. However, I argue that, when understood as a free-standing approach to politics, Kant’s doctrine of right shares essential features with the prevailing theories that legitimate really existing economic inequality. Like Friedrich Hayek and Milton Friedman, Kant understands the state’s function (...) as essentially coercive and, in justifying state coercion, he adopts a narrow conception of political freedom that formally preserves the right to choose while denying that the range of choices one actually has can be a matter of justice. As a result, Kant cannot identify various forms of social pressure as potential injustices even as he recognizes their power to create and sustain troubling inequalities. For both Kant and the neoliberals, the result is that economic relations almost never count as unjust forms of coercion, no matter how unequal they are. Views that identify coercion as the trigger for duties of justice are thus particularly ill-suited to orient us to contemporary inequality. (shrink)

As with terms such as “human rights”, “democracy”, and “equality”, the notion of “freedom” has an emblematic character with highly normative overtones. After the declaration of universal human rights, one might argue that freedom is – at least formally – a universal entitlement belonging to every human being. However, this universalist structure is built upon a conflictual foundation, as the juridico-political meaning of freedom is determined by the boundaries of national citizenship, statehood, and territorial sovereignty. This chapter examines refugeehood as (...) a normal by-product of the post-colonial world order, embodying the counter-history of nation-states whose internal borders, walls, and external fortifications are growingly being militarised and reinforced. Refugeehood represents an anomalous juridico-political condition that cannot be elucidated by colonial-racial binaries such as inclusion versus exclusion or rightlessness versus national citizenship. The central idea of this chapter is that, for refugees, the meaning of freedom and unfreedom are intertwined and should be approached as a dynamic relationship characterising the state of (non)-subjectivity. As political (non)-subjects, refugees call structural determinations of unfreedom into question. Refugees’ freedom is expressed in the act of flight and border crossing, irregular migratory movement, language games of resistance, and other emancipatory signifying practices by which they claim a place of refuge in the world. (shrink)

Should voting be compulsory? Many people believe that it should, and that countries, like Britain, which have never had compulsion, ought to adopt it. As is common with such things, the arguments are a mixture of principle and political calculation, reflecting the idea that compulsory voting is morally right and that it is likely to prove politically beneficial. This article casts a sceptical eye on both types of argument. It shows that compulsory voting is generally unjustified although there are good (...) reasons to worry about declining voter turnout in established democracies, and to worry about inequalities of turnout as well. (shrink)

This is a statement and defence of an ethical and social philosophy which the author terms ‘critical humanism’, which may be described in very general terms as the view of life and human problems which one finds in The Guardian and the London ‘quality Sundays’. Freedom is a good thing; all men are equal; poverty and distress must be relieved as far as possible; democracy is the best system of government. Other good things are : divorce, contraception, euthanasia, abortion. Dr (...) Milne makes one addition to the list : suicide. And he would allow criminals to choose suicide as an alternative to life imprisonment. (shrink)

This is a statement and defence of an ethical and social philosophy which the author terms ‘critical humanism’, which may be described in very general terms as the view of life and human problems which one finds in The Guardian and the London ‘quality Sundays’. Freedom is a good thing; all men are equal; poverty and distress must be relieved as far as possible; democracy is the best system of government. Other good things are : divorce, contraception, euthanasia, abortion. Dr (...) Milne makes one addition to the list : suicide. And he would allow criminals to choose suicide as an alternative to life imprisonment. (shrink)

This paper is about conflicts of rights, and the particularly difficult challenges that such conflicts present when they entail women’s equality and claims of cultural recognition. South Africa since 1994 has presented a series of challenging—but by no means unique—circumstances many of which entail conflicting claims of rights. The central aim of this paper is, to make sense of the idea that the institution of traditional leadership can be sustained—and indeed given new, more concrete powers—in a democracy; and to explore (...) the implications that this has for women’s equality and equal human rights. This is a particularly pertinent question in the South African context, and I think it is worth reiterating from the outset that there is a distinct impression that women’s equality is always “up for grabs” when other, perhaps more powerful interests, come into play, in a way that would be unacceptable for other aspects of identity, and therefore signifiers of equality. It would be inconceivable, for example, to countenance a claim for a hierarchical racial arrangement in a given community, no matter how deeply culturally entrenched that arrangement was, and regardless of how much support it (ostensibly) had from the community concerned. I think therefore that we are obliged to ask difficult questions about the new legislation on traditional leadership, and to put it under the microscope of political theory in assessing the claim that this is one way of recognizing people’s rights and freedoms in a new democracy. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

The core idea of this paper is that we can use the differences between democratic and undemocratic governments to illuminate ethical problems, particularly in the area of political philosophy. Democratic values, rights and institutions lie between the most abstract considerations of ethics and meta-ethics and the most particularised decisions, outcomes and contexts. Hence, this paper argues, we can use the differences between democratic and undemocratic governments, as we best understand them, to structure our theoretical investigations, to test and organise our (...) intuitions and ideas, and to explain and justify our philosophical conclusions in ways analogous to the distinction between consequentialist and deontological theories in moral philosophy, or between liberal and republican principles in political philosophy. In this way – or so I will argue – we can interpret and evaluate competing philosophical claims so that they are morally and politically attractive, as well as logically consistent. Specifically, as we will see, a democracy-centred approach to ethics can help us to distinguish liberal and democratic approaches to political morality in ways that reflect the varieties of democratic theory, and the importance of distinguishing democratic from undemocratic forms of liberalism. (shrink)

When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this view by (...) showing that, in fact, democracy demands many of these rights. Corey Brettschneider argues that ideal democracy is comprised of three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as Jürgen Habermas, he demonstrates that such rights are essential components of--rather than constraints on--an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government. (shrink)

Michael Blake’s excellent book 'Justice and Foreign Policy' makes an important contribution to the ongoing debates about the kinds of values that should inform the foreign policy of liberal states. In this paper I evaluate his defence of the view that egalitarianism applies within the state but not globally. I discuss two arguments he gives for this claim - one appealing to the material preconditions of democracy and the other grounded in a duty to justify coercive power. I argue that (...) neither argument succeeds. I then identify a general problem with his approach. If states adopted Blake’s principles for their foreign policy we would have a much better world than currently exists. But it would not – I submit - be a fair world. (shrink)