Vol. 14 No. 6 (June 2004), pp.489-492

PRIVACIES: PHILOSOPHICAL EVALUATIONS, by Beate Rössler (ed.).  Stanford, CA: Stanford University Press, 2004. 256pp.  Cloth. $55.00.  ISBN: 0804745633.  Paper. $22.95. ISBN: 0804745641. 

Reviewed by Robert Pallitto, Department of Political Science, University of Texas at El Paso.  Email: rmpallitto@utep.edu .

At its best, theory provides close and insightful analysis of important terms and concepts, and remains grounded in the realities of everyday social relations. PRIVACIES: PHILOSOPHICAL EVALUATIONS succeeds on both of these counts. This diverse and wide-ranging collection, edited by Beate Rössler, interrogates the notion of privacy from various perspectives—e.g., law, feminist theory and literary theory—while drawing simultaneously on the intellectual traditions of Habermas, Foucault, Hegel and Kant, among others. The material comes largely from a conference held in 1999 at the University of Amsterdam and its Amsterdam School for Cultural Analysis, and the book’s format pairs most of the presentations with brief responses. These factors account for the exceptional cohesiveness of the collection. The writers frequently refer back to other contributors, and consequently all of the positions represented are rigorously questioned.

In the first selection on privacy and American law, Anita Allen highlights the following paradox: while the U.S. legal system has generated voluminous privacy law through constitutional, statutory and common-law forms, the nation seems to be “ambivalent about enforcing some of its privacy protections and reluctant to enact additional privacy laws it arguably needs” (p.19). As an example, she notes the dearth of privacy protections available to gays and lesbians, and I would point also to the trumping of privacy concerns by anti-terror initiatives like the one discussed by Reiman, below. As she concludes her careful and detail-rich discussion of privacy law, Allen calls for greater “respect for solitude, independent reflection, true intimacy and moral choice that healthy modern liberal democracies presuppose” (p.36). Nicola Lacey is supportive of Allen’s general approach, but she notes that Allen leaves us in a rather abstract and murky place when she considers future goals of privacy law, offering little concrete help as to how to get there.

Beate Rössler, the editor of the volume, contributes a feminist critique of the liberal notion of a private sphere; her critique touches on the harms to women that result from a demarcation of the family as private, non-political space. That ideological division has long come under criticism from feminists, who argue that it serves to shield men’s behavior from legal, or even social, scrutiny. However, Rössler also “challenges those feminist theories that would completely renounce the [public-private] distinction” (p.58). She draws a deeper distinction between the “legal-conventional” private sphere, which protects important aspects of human activity from state interference, and the [*490] “natural” private sphere, which consigns women to a realm of necessity and isolation that limits their potential. While there is reason to reject the latter, the former is beneficial and worth preserving, notwithstanding its origins in liberal political theory. One of Rössler’s most interesting insights is that it is misleading to conceptualize the private as rigidly bounded space. Individuals continually renegotiate and reshape, in its various dimensions, what we think of as the private—there is no bright or fixed line around that domain.

Jean Cohen continues the exploration of contradictions within the liberal conception of the private, focusing on the problem that juridification of privacy norms poses for personal autonomy. Cohen is particularly concerned that the regulation of intimate relationships under Title VII sexual harassment law, for example, sometimes infringes too much on the decisionmaking capacity of individuals, and as such interferes with their ethical freedom to identify and pursue their particular conceptions of the good life. Thus, while much of Title VII law is effective and necessary, some provisions encourage “over-regulation and arbitrariness,” according to Cooke (p.92). In her critique, Maeve Cooke reads Cohen to say that “privacy rights free the individual human subject from the obligation to justify her personal choices to anyone” (p.103) (emphasis in original). Cooke fears that Cohen’s conception threatens the intersubjective process of determining policy norms through dialogue. She suggests that privacy, for Cohen, amounts to a “hermetic self-enclosure” that precludes the human subject from entering into “dialogical encounters with others who may challenge her views of the good life and force her to revise them” (p.105).  

Moira Gatens uses literary methodology to explore the ways in which discourses shape subjectivity; her inquiry suggests that the development of the self is less private than we might suppose. The extent to which identity formation is impacted by the subject’s situatedness within discourse leads Gatens to ask about “the interplay between publicity and privacy – that is, the interplay between the body as object for the evaluative gaze of the other, and the way that body is lived as identity” (p.129). Gatens’ Foucauldian orientation shows that discourses in which the subject is positioned make claims on the body, so that there is neither one universal experience of privacy nor a singular dividing line demarcating the private. Wendy Brown historicizes Gatens’ analysis by focusing on the advent of cellular phone technology and considering the impact that the ubiquitous cell phone has had on the potential to experience things. Cell phones uniquely remove people from public interaction even when their users are occupying public space, while at the same time making the users’ private conversations partially accessible to strangers. Brown sees this phenomenon as “a very specific, highly contemporary production of subjects – ones . . . who can barely experience privacy, intimacy or public life” (p.136). She concludes by asking whether this double loss of experiential capacity leaves us with anything more than “a ghostly residue of a once-important subjective capacity and way of life” (p.141).  

Like Jean Cohen, Axel Honneth is wary of rigid conceptualizations of private space, and of a static public/private [*491] boundary. Honneth outlines a Kantian rights-based notion of family relations on the one hand, and a Hegelian affection-based version on the other. While these two conceptions roughly track the categories “justice” and “affection,” respectively, he shows that they are neither mutually exclusive nor rigidly confined. Thus, there is a limit the state must observe, beyond which regulation is not permitted, but even beyond that limit family members may make appeals to universal principles of justice. Other family members respect those appeals not out of legal obligation but rather because of mutual affection and care for one another. In fact, “caring actions of this kind lose their moral value in relationships as soon as they are performed not out of the feeling of love but out of rational insight into a duty” (p.157) (my emphasis). Herlinde Pauer-Studer asks whether the affection-based conception of family Honneth prefers is not an idealized one that shortchanges feminist concerns about gendered power distribution within the family.  

Iris Marion Young argues for the importance of a home in any conception of privacy that purports to be normative for a modern liberal-democratic society. The “private space” of home entails “the ability to have a dwelling space of one’s own, to which a person is able to control access, and in which one lives among the things that help support the narrative of one’s life” (p.169). Young’s phenomenological account helps her to say that the connection of one’s things and one’s habits with the process of identity formation makes the home central to an important aspect of privacy: saying, and becoming who we are. Relying on this description, Young argues that the central importance of home-as-private-space should be recognized and operationalized by policymakers, who should ensure that seniors – and, presumably, everyone else – are granted such space, regardless of income or other circumstances. While it is difficult to disagree with Young’s convincing and intimate presentation of the importance of home vis-à-vis privacy, it seems necessary to note just how far we are, at present, from implementing her recommendations as policy. Social service debates nowadays, at least in the United States, center on preserving programs and benefits already in existence rather than expanding the number and kind of rights the public now enjoys. 

In response to Young, Krishnan Kumar rightly asks whether Young’s emphasis on the home as primary private space is too ahistorical, such that it makes “a home of one’s own” normative and consequently threatens further the already strained and tenuous social status of homeless persons and others who lack, even temporarily, access to home-space. He suggests that Young’s “celebration of home” may in fact amount to “a clinging to some shreds of comfort and security in a world that has eliminated all other sources of meaning and identity” (p.189). Here, Kumar echoes several other contributors who worry about liberalism’s tendency to cordon off “the private” not only from government intrusion, but also from public debate. Like Maeve Cooke in an earlier chapter, Kumar cautions us about the dangers of shutting down all ongoing public discussion of the bounds and meanings of privacy: contestations of privacy are necessary in order to maintain a workable and beneficial conception of private space in its various [*492] dimensions. “[A]s we enjoy the comforts and seclusions of the home,” he warns, “the barbarians may be taking over the streets, and perhaps also the state” (p.192). 

In his contribution, “Driving to the Panopticon,” Jeffrey Reiman takes up the question of privacy rights and governmental searches in the context of Intelligent Vehicle Highway Systems (IVHS), a new information technology that records the travel times and routes of automobile drivers. Reiman worries, with good reason, about the potential dangers to privacy that IVHS poses, and he is right, in my view, to focus his concern on the ontological dimension of privacy that Justice Brandeis emphasized nearly a century ago. In his famous, and still-relevant, remark quoted in the introduction to Privacies, Brandeis asserted that “the right to be left alone” is a crucial aspect of the citizen’s right to privacy as against her government. While IVHS could raise the more familiar privacy concern that evidence seized illegally might be used to prosecute, the deeper question posed by IVHS is whether, and in what ways, our experience of living changes when we can no longer expect to be left alone by the government. In other words, we can contest the ability of law enforcement to seize and offer evidence in prosecution of criminal offenses, but it is far more difficult to gain a practical or conceptual hold on the nature of the intrusion resulting from endless observation that is ever-present irrespective of whether or not we know precisely when it is happening. The lesson of the panopticon drawn by Foucault and amplified by Reiman is that we are never assuredly alone – and so the panopticon need not even be staffed by an observer: we lose the expectation of privacy either way (p.195).  If ever there were a time to be theorizing this dimension of privacy, it is now.     

The final contribution to PRIVACIES, by Gertrud Koch, problematizes the public/private divide by introducing the phenomenon of media. Like cell phone use in the Wendy Brown selection, the media require us to remap the public and private because of the way media presence changes, and sometimes eliminates, experience. We might be tempted to say that the media belong to the public rather than the private, but Koch shows us that, in view of their capacity to distract us and enter the most private parts of our lives, that simply is not so. Thus, film, for example, is “part of private life and not a limitation imposed on it from without” (p.225). We are left with a more complex understanding of the private, as Koch shows yet another dimension of contemporary privacy not easily conceptualized by a simple dividing line. 

This collection ranges across privacy debates quite widely, but it still manages to review the major contributions to privacy studies and respond to them. It is a useful volume for anyone seeking a good overview of the topic, and it also represents the best thinking on each of the sub-areas covered. One can feel confident, after reading PRIVACIES, that the major new interventions in political theory discussions of privacy have been encountered. Additionally, the multiple conversations about privac(ies) that one finds here can – and should – be continued beyond the points where the book leaves them.  

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Copyright 2004 by the author, Robert Pallitto.