Privacy Rights/Philosophical Origins/Theories - Revision history

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{{Right section
|right=Privacy Rights
|section=Philosophical Origins
|question=Theories
|questionHeading=What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?
|pageLevel=Question
|contents=Positive Law

Positive law theory asks if the actions the government actor took would have been unlawful for a nongovernment actor to do in that jurisdiction (Baude & Stern, [[Probable year::2016]], [[Probable year::1830]], [[Probable year::1831]]) . In other words, what does the written law allow? For instance, the model holds something to be a search if the government uses special legal powers to gain access to information (Baude & Stern, [[Probable year::2016]], [[Probable year::1832]]) . This model constrains the ability possessed by police to gain information from private parties while creating a predictable conception of privacy (Baude & Stern, [[Probable year::2016]], [[Probable year::1856]]) . Its use in the United States aims to add clarity to privacy expectations that is not had in the Katz test (Baude & Stern, [[Probable year::2016]], [[Probable year::1869]]) . Positive law theory was used in California v. Ciraolo and Florida v. Riley (Baude & Stern, [[Probable year::2016]], [[Probable year::1867]]) .

Natural Law

Locke is one of the primary natural law theorists. In his Two Treatises on Government: Concerning the True Original Extent and End of Civil Government (Essay Two) he discusses some of these rights which implicitly concern privacy in the State of Nature. In Chapter II: Of the State of Nature, he recognizes in section 6 that the laws of nature prevent “harm[ing] another in his life, health, liberty or possessions” (Locke, [[Probable year::1832]], 107). All of these categories can be linked to laws today which protect privacy: mainly constitutional law in various countries, but also, for instance, the United States Health Insurance Portability and Accountability Act ([[Probable year::1996]]) .

Critical Legal Studies

Critical Legal Theorists believe law becomes intertwined with social issues causing each judge to have a somewhat different judgement in each case (Dworkin, [[Probable year::1977]], 117). These differing torts and constitutional interpretations create varying implications in jurisdictions based on the weight precedents are given (Dworkin, [[Probable year::1977]], 118). Dworkin recognizes that with this connection to social facts, the judiciary plays a bigger role in society (Waldron. [[Probable year::1999]], 211). For instance, some judges may find a connection between the directly provided for protection of the right to liberty and implied right to privacy, while others may not (Dworkin, [[Probable year::1977]], 117). Roberto Unger supports this example, writing in his essay ‘’Critical Legal Studies Movement’’ that some rights give individuals “a zone of unchecked discretionary action that others … may not invade,” reminiscent of Warren & Brandeis’s original claim to the right to privacy (Unger, [[Probable year::1983]], 599).

Legal Positivism

Legal Positivism claims law depends on social facts, but the existence of law is not dependent on its merits or morals (Sevel & Leiter, [[Probable year::2010]]) . H. L. A. Hart, a famed positivist, claimed that “law should be bound by limits and respect citizen’s privacy” (van der Sloot, 1). Moreover, the state could not and should not regulate private conduct unless there was harm (van der Sloot, 1). Robert Burt claims Hart essentially follows Louis Brandeis’s “right to be let alone” (Burt, [[Probable year::2004]], 14).

Legal Realism

Legal Realism is reading laws “in the light of the purpose and policy of the rule or principle in question” (Macauley, [[Probable year::2005]], 371). As such, legal realism expects the law to be constantly changing based on social conditions (Hall, [[Probable year::2005]], 452). Calo claims privacy law exemplifies legal realism because of all of the exceptions, shifts with technology, and meanings dependent on other values and rights (Calo, [[Probable year::2019]], 34). Despite privacy law’s beginnings being rooted in legal realism, he recognizes that privacy scholars have not expressly used this legal theory (Calo, [[Probable year::2019]], 34, 40, 48).

United States Constitutional Theorists

One would think defining the appearance of privacy rights in the United States Constitution to be easy, especially given the language of ‘penumbras’ used in Griswold v. Connecticut rather than citing one specific clause constitutional (Griswold v. CT, [[Probable year::1965]], pars. 14-15). However, Scott Gerber demonstrated in his work Privacy and Constitutional Theory that all six of the constitutional theories of interpretation he presented can be used to find privacy rights in the Constitution (Gerber, [[Probable year::2000]]; Baker, [[Probable year::2004]]) .

Originalists: In his writing, Gerber ([[Probable year::2000]]) posits that if an originalist interpreter wants to find privacy rights in the constitution, they can (167). Generally, those who do find privacy rights in the Constitution cite the Ninth Amendment (Gerber, [[Probable year::2000]], 171). This is what Justice Arthur Goldberg cited in his Griswold concurrence and has been cited as such since James Madison wrote the amendment (Gerber, [[Probable year::2000]], 171, 172).

Living Constitutionalists (US): Living constitutionalists allow for precedents to be called upon. It can be argued this is what was done in Griswold v. CT and other substantive due process decisions on privacy, such as Boyd v. US in [[Probable year::1886]] (Gerber, [[Probable year::2000]], 178). In the Griswold majority opinion, Justice William Douglas argued that the Supreme Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, [[Probable year::1965]], par. 11).

Resources

Baker, T.E. ([[Probable year::2004]]) . Constitutional theory in a nutshell. William & Mary Bill of Rights Journal 13(1), 57-123. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=[[Probable year::1245]]& context=wmborj
Baude, W. & Stern, J.Y. ([[Probable year::2016]], May). The positive law model of the Fourth Amendment. Harvard Law Review 129(7), [[Probable year::1821]]- [[Probable year::1889]]. https://www.jstor.org/stable/4407[[Probable year::2348]]
Burt, R. ([[Probable year::2004]]) . Moral offenses and same sex relations: Revisiting the Hart-Devlin Debate. Yale Law School Faculty Scholarship Series. https://digitalcommons.law.yale.edu/fss_papers/711/
Calo, R. ([[Probable year::2019]]) . Privacy Law’s Indeterminacy. Theoretical Inquiries in Law 20(1), 33-52. https://doi.org/10.[[Probable year::1515]]/ til-[[Probable year::2019]]- 0001
Dworkin, R. ([[Probable year::1977]]) . Taking rights seriously. Harvard University Press.
Gerber, S. ([[Probable year::2000]]) . Privacy and constitutional theory. Social Philosophy and Policy 17(2), 165-185. https://doi.org/10.[[Probable year::1017]]/ S026505250000[[Probable year::2156]]
Griswold v. Connecticut, 381 U.S. 479 ([[Probable year::1965]]) . https://www.law.cornell.edu/supremecourt/text/381/479
Hall, E.L. (Ed.). ([[Probable year::2005]]) . The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press.
Locke, J. ([[Probable year::2008]]) . Concerning the true original extent and end of civil government. In R. Hay (Ed.), The Works of John Locke: In 10 volumes (Vol. V). Cosimo Classics.
Macaulay, S. ([[Probable year::2005]]) . The new versus od legal realism: “Things ain’t what they used to be.” Wisconsin Law Review [[Probable year::2005]]( 2), 365-403. From https://media.law.wisc.edu/s/c_8/tg2md/new_versus.pdf
Sevel, M. & Leiter, B. ([[Probable year::2010]]) . Legal Positivism. Oxford Bibliographies. https://doi.org/10.[[Probable year::1093]]/ OBO/9780195396577-0065
van der Sloot, B. ([[Probable year::2017]]) . Privacy as secondary rule, or the intrinsic limits of legal orders in the age of Big Data. In M. Dehmer and F. Emmert-Streib (Eds.), Frontiers in Data Science. CRC Press. https://bartvandersloot.com/onewebmedia/Privacy%20as%20secondary%20rule.pdf
Unger, R.M. ([[Probable year::1983]], Jan.). The Critical Legal Studies Movement. Harvard Law Review 96(3), 561-675. https://www.jstor.org/stable/134[[Probable year::1032]]
Waldron, J. ([[Probable year::1999]]) Law and Disagreement. Oxford University Press.

}}

← Older revision		Revision as of 22:12, 28 December 2022
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	\|contents=Positive Law		\|contents=Positive Law

	Positive law theory asks if the actions the government actor took would have been unlawful for a nongovernment actor to do in that jurisdiction (Baude & Stern, [[Probable year::2016]], [[Probable year::1830]], [[Probable year::1831]]) . In other words, what does the written law allow? For instance, the model holds something to be a search if the government uses special legal powers to gain access to information (Baude & Stern, [[Probable year::2016]], [[Probable year::1832]]) . This model constrains the ability possessed by police to gain information from private parties while creating a predictable conception of privacy (Baude & Stern, [[Probable year::2016]], [[Probable year::1856]]) . Its use in the United States aims to add clarity to privacy expectations that is not had in the Katz test (Baude & Stern, [[Probable year::2016]], [[Probable year::1869]]) . Positive law theory was used in California v. Ciraolo and Florida v. Riley (Baude & Stern, [[Probable year::2016]], [[Probable year::1867]]) .		Positive law theory asks if the actions the government actor took would have been unlawful for a nongovernment actor to do in that jurisdiction (Baude & Stern, [[Probable year:: 2016]], [[Probable year:: 1830]], [[Probable year:: 1831]]) . In other words, what does the written law allow? For instance, the model holds something to be a search if the government uses special legal powers to gain access to information (Baude & Stern, [[Probable year:: 2016]], [[Probable year:: 1832]]) . This model constrains the ability possessed by police to gain information from private parties while creating a predictable conception of privacy (Baude & Stern, [[Probable year:: 2016]], [[Probable year:: 1856]]) . Its use in the United States aims to add clarity to privacy expectations that is not had in the Katz test (Baude & Stern, [[Probable year:: 2016]], [[Probable year:: 1869]]) . Positive law theory was used in California v. Ciraolo and Florida v. Riley (Baude & Stern, [[Probable year:: 2016]], [[Probable year:: 1867]]) .

	Natural Law		Natural Law

	Locke is one of the primary natural law theorists. In his Two Treatises on Government: Concerning the True Original Extent and End of Civil Government (Essay Two) he discusses some of these rights which implicitly concern privacy in the State of Nature. In Chapter II: Of the State of Nature, he recognizes in section 6 that the laws of nature prevent “harm[ing] another in his life, health, liberty or possessions” (Locke, [[Probable year::1832]], 107). All of these categories can be linked to laws today which protect privacy: mainly constitutional law in various countries, but also, for instance, the United States Health Insurance Portability and Accountability Act ([[Probable year::1996]]) .		Locke is one of the primary natural law theorists. In his Two Treatises on Government: Concerning the True Original Extent and End of Civil Government (Essay Two) he discusses some of these rights which implicitly concern privacy in the State of Nature. In Chapter II: Of the State of Nature, he recognizes in section 6 that the laws of nature prevent “harm[ing] another in his life, health, liberty or possessions” (Locke, [[Probable year:: 1832]], 107). All of these categories can be linked to laws today which protect privacy: mainly constitutional law in various countries, but also, for instance, the United States Health Insurance Portability and Accountability Act ([[Probable year:: 1996]]) .

	Critical Legal Studies		Critical Legal Studies

	Critical Legal Theorists believe law becomes intertwined with social issues causing each judge to have a somewhat different judgement in each case (Dworkin, [[Probable year::1977]], 117). These differing torts and constitutional interpretations create varying implications in jurisdictions based on the weight precedents are given (Dworkin, [[Probable year::1977]], 118). Dworkin recognizes that with this connection to social facts, the judiciary plays a bigger role in society (Waldron. [[Probable year::1999]], 211). For instance, some judges may find a connection between the directly provided for protection of the right to liberty and implied right to privacy, while others may not (Dworkin, [[Probable year::1977]], 117). Roberto Unger supports this example, writing in his essay ‘’Critical Legal Studies Movement’’ that some rights give individuals “a zone of unchecked discretionary action that others … may not invade,” reminiscent of Warren & Brandeis’s original claim to the right to privacy (Unger, [[Probable year::1983]], 599).		Critical Legal Theorists believe law becomes intertwined with social issues causing each judge to have a somewhat different judgement in each case (Dworkin, [[Probable year:: 1977]], 117). These differing torts and constitutional interpretations create varying implications in jurisdictions based on the weight precedents are given (Dworkin, [[Probable year:: 1977]], 118). Dworkin recognizes that with this connection to social facts, the judiciary plays a bigger role in society (Waldron. [[Probable year:: 1999]], 211). For instance, some judges may find a connection between the directly provided for protection of the right to liberty and implied right to privacy, while others may not (Dworkin, [[Probable year:: 1977]], 117). Roberto Unger supports this example, writing in his essay ‘’Critical Legal Studies Movement’’ that some rights give individuals “a zone of unchecked discretionary action that others … may not invade,” reminiscent of Warren & Brandeis’s original claim to the right to privacy (Unger, [[Probable year:: 1983]], 599).

	Legal Positivism		Legal Positivism

	Legal Positivism claims law depends on social facts, but the existence of law is not dependent on its merits or morals (Sevel & Leiter, [[Probable year::2010]]) . H. L. A. Hart, a famed positivist, claimed that “law should be bound by limits and respect citizen’s privacy” (van der Sloot, 1). Moreover, the state could not and should not regulate private conduct unless there was harm (van der Sloot, 1). Robert Burt claims Hart essentially follows Louis Brandeis’s “right to be let alone” (Burt, [[Probable year::2004]], 14).		Legal Positivism claims law depends on social facts, but the existence of law is not dependent on its merits or morals (Sevel & Leiter, [[Probable year:: 2010]]) . H. L. A. Hart, a famed positivist, claimed that “law should be bound by limits and respect citizen’s privacy” (van der Sloot, 1). Moreover, the state could not and should not regulate private conduct unless there was harm (van der Sloot, 1). Robert Burt claims Hart essentially follows Louis Brandeis’s “right to be let alone” (Burt, [[Probable year:: 2004]], 14).

	Legal Realism		Legal Realism

	Legal Realism is reading laws “in the light of the purpose and policy of the rule or principle in question” (Macauley, [[Probable year::2005]], 371). As such, legal realism expects the law to be constantly changing based on social conditions (Hall, [[Probable year::2005]], 452). Calo claims privacy law exemplifies legal realism because of all of the exceptions, shifts with technology, and meanings dependent on other values and rights (Calo, [[Probable year::2019]], 34). Despite privacy law’s beginnings being rooted in legal realism, he recognizes that privacy scholars have not expressly used this legal theory (Calo, [[Probable year::2019]], 34, 40, 48).		Legal Realism is reading laws “in the light of the purpose and policy of the rule or principle in question” (Macauley, [[Probable year:: 2005]], 371). As such, legal realism expects the law to be constantly changing based on social conditions (Hall, [[Probable year:: 2005]], 452). Calo claims privacy law exemplifies legal realism because of all of the exceptions, shifts with technology, and meanings dependent on other values and rights (Calo, [[Probable year:: 2019]], 34). Despite privacy law’s beginnings being rooted in legal realism, he recognizes that privacy scholars have not expressly used this legal theory (Calo, [[Probable year:: 2019]], 34, 40, 48).

	United States Constitutional Theorists		United States Constitutional Theorists

	One would think defining the appearance of privacy rights in the United States Constitution to be easy, especially given the language of ‘penumbras’ used in Griswold v. Connecticut rather than citing one specific clause constitutional (Griswold v. CT, [[Probable year::1965]], pars. 14-15). However, Scott Gerber demonstrated in his work Privacy and Constitutional Theory that all six of the constitutional theories of interpretation he presented can be used to find privacy rights in the Constitution (Gerber, [[Probable year::2000]]; Baker, [[Probable year::2004]]) .		One would think defining the appearance of privacy rights in the United States Constitution to be easy, especially given the language of ‘penumbras’ used in Griswold v. Connecticut rather than citing one specific clause constitutional (Griswold v. CT, [[Probable year:: 1965]], pars. 14-15). However, Scott Gerber demonstrated in his work Privacy and Constitutional Theory that all six of the constitutional theories of interpretation he presented can be used to find privacy rights in the Constitution (Gerber, [[Probable year:: 2000]]; Baker, [[Probable year:: 2004]]) .

	Originalists: In his writing, Gerber ([[Probable year::2000]]) posits that if an originalist interpreter wants to find privacy rights in the constitution, they can (167). Generally, those who do find privacy rights in the Constitution cite the Ninth Amendment (Gerber, [[Probable year::2000]], 171). This is what Justice Arthur Goldberg cited in his Griswold concurrence and has been cited as such since James Madison wrote the amendment (Gerber, [[Probable year::2000]], 171, 172).		Originalists: In his writing, Gerber ([[Probable year:: 2000]]) posits that if an originalist interpreter wants to find privacy rights in the constitution, they can (167). Generally, those who do find privacy rights in the Constitution cite the Ninth Amendment (Gerber, [[Probable year:: 2000]], 171). This is what Justice Arthur Goldberg cited in his Griswold concurrence and has been cited as such since James Madison wrote the amendment (Gerber, [[Probable year:: 2000]], 171, 172).

	Living Constitutionalists (US): Living constitutionalists allow for precedents to be called upon. It can be argued this is what was done in Griswold v. CT and other substantive due process decisions on privacy, such as Boyd v. US in [[Probable year::1886]] (Gerber, [[Probable year::2000]], 178). In the Griswold majority opinion, Justice William Douglas argued that the Supreme Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, [[Probable year::1965]], par. 11).		Living Constitutionalists (US): Living constitutionalists allow for precedents to be called upon. It can be argued this is what was done in Griswold v. CT and other substantive due process decisions on privacy, such as Boyd v. US in [[Probable year:: 1886]] (Gerber, [[Probable year:: 2000]], 178). In the Griswold majority opinion, Justice William Douglas argued that the Supreme Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, [[Probable year:: 1965]], par. 11).

	Resources		Resources

	Baker, T.E. ([[Probable year::2004]]) . Constitutional theory in a nutshell. William & Mary Bill of Rights Journal 13(1), 57-123. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=[[Probable year::1245]]& context=wmborj		Baker, T.E. ([[Probable year:: 2004]]) . Constitutional theory in a nutshell. William & Mary Bill of Rights Journal 13(1), 57-123. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=[[Probable year:: 1245]]& context=wmborj
	Baude, W. & Stern, J.Y. ([[Probable year::2016]], May). The positive law model of the Fourth Amendment. Harvard Law Review 129(7), [[Probable year::1821]]- [[Probable year::1889]]. https://www.jstor.org/stable/4407[[Probable year::2348]]		Baude, W. & Stern, J.Y. ([[Probable year:: 2016]], May). The positive law model of the Fourth Amendment. Harvard Law Review 129(7), [[Probable year:: 1821]]- [[Probable year:: 1889]]. https://www.jstor.org/stable/4407[[Probable year:: 2348]]
	Burt, R. ([[Probable year::2004]]) . Moral offenses and same sex relations: Revisiting the Hart-Devlin Debate. Yale Law School Faculty Scholarship Series. https://digitalcommons.law.yale.edu/fss_papers/711/		Burt, R. ([[Probable year:: 2004]]) . Moral offenses and same sex relations: Revisiting the Hart-Devlin Debate. Yale Law School Faculty Scholarship Series. https://digitalcommons.law.yale.edu/fss_papers/711/
	Calo, R. ([[Probable year::2019]]) . Privacy Law’s Indeterminacy. Theoretical Inquiries in Law 20(1), 33-52. https://doi.org/10.[[Probable year::1515]]/ til-[[Probable year::2019]]- 0001		Calo, R. ([[Probable year:: 2019]]) . Privacy Law’s Indeterminacy. Theoretical Inquiries in Law 20(1), 33-52. https://doi.org/10.[[Probable year:: 1515]]/ til-[[Probable year:: 2019]]- 0001
	Dworkin, R. ([[Probable year::1977]]) . Taking rights seriously. Harvard University Press.		Dworkin, R. ([[Probable year:: 1977]]) . Taking rights seriously. Harvard University Press.
	Gerber, S. ([[Probable year::2000]]) . Privacy and constitutional theory. Social Philosophy and Policy 17(2), 165-185. https://doi.org/10.[[Probable year::1017]]/ S026505250000[[Probable year::2156]]		Gerber, S. ([[Probable year:: 2000]]) . Privacy and constitutional theory. Social Philosophy and Policy 17(2), 165-185. https://doi.org/10.[[Probable year:: 1017]]/ S026505250000[[Probable year:: 2156]]
	Griswold v. Connecticut, 381 U.S. 479 ([[Probable year::1965]]) . https://www.law.cornell.edu/supremecourt/text/381/479		Griswold v. Connecticut, 381 U.S. 479 ([[Probable year:: 1965]]) . https://www.law.cornell.edu/supremecourt/text/381/479
	Hall, E.L. (Ed.). ([[Probable year::2005]]) . The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press.		Hall, E.L. (Ed.). ([[Probable year:: 2005]]) . The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press.
	Locke, J. ([[Probable year::2008]]) . Concerning the true original extent and end of civil government. In R. Hay (Ed.), The Works of John Locke: In 10 volumes (Vol. V). Cosimo Classics.		Locke, J. ([[Probable year:: 2008]]) . Concerning the true original extent and end of civil government. In R. Hay (Ed.), The Works of John Locke: In 10 volumes (Vol. V). Cosimo Classics.
	Macaulay, S. ([[Probable year::2005]]) . The new versus od legal realism: “Things ain’t what they used to be.” Wisconsin Law Review [[Probable year::2005]]( 2), 365-403. From https://media.law.wisc.edu/s/c_8/tg2md/new_versus.pdf		Macaulay, S. ([[Probable year:: 2005]]) . The new versus od legal realism: “Things ain’t what they used to be.” Wisconsin Law Review [[Probable year:: 2005]]( 2), 365-403. From https://media.law.wisc.edu/s/c_8/tg2md/new_versus.pdf
	Sevel, M. & Leiter, B. ([[Probable year::2010]]) . Legal Positivism. Oxford Bibliographies. https://doi.org/10.[[Probable year::1093]]/ OBO/9780195396577-0065		Sevel, M. & Leiter, B. ([[Probable year:: 2010]]) . Legal Positivism. Oxford Bibliographies. https://doi.org/10.[[Probable year:: 1093]]/ OBO/9780195396577-0065
	van der Sloot, B. ([[Probable year::2017]]) . Privacy as secondary rule, or the intrinsic limits of legal orders in the age of Big Data. In M. Dehmer and F. Emmert-Streib (Eds.), Frontiers in Data Science. CRC Press. https://bartvandersloot.com/onewebmedia/Privacy%20as%20secondary%20rule.pdf		van der Sloot, B. ([[Probable year:: 2017]]) . Privacy as secondary rule, or the intrinsic limits of legal orders in the age of Big Data. In M. Dehmer and F. Emmert-Streib (Eds.), Frontiers in Data Science. CRC Press. https://bartvandersloot.com/onewebmedia/Privacy%20as%20secondary%20rule.pdf
	Unger, R.M. ([[Probable year::1983]], Jan.). The Critical Legal Studies Movement. Harvard Law Review 96(3), 561-675. https://www.jstor.org/stable/134[[Probable year::1032]]		Unger, R.M. ([[Probable year:: 1983]], Jan.). The Critical Legal Studies Movement. Harvard Law Review 96(3), 561-675. https://www.jstor.org/stable/134[[Probable year:: 1032]]
	Waldron, J. ([[Probable year::1999]]) Law and Disagreement. Oxford University Press.		Waldron, J. ([[Probable year:: 1999]]) Law and Disagreement. Oxford University Press.


	}}		}}