Monday, August 20, 2018

Marcelo Thompson on the Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation (new book chapter)

in Daniel Matthews & Scott Veitch (eds), Law, Obligation, Community (Routledge, June 2018), Chapter 9, 34 pages
Introduction: What is the origin of the force of privacy obligations? That privacy obligations are legal obligations and obligations endowed with a certain force is indisputable. The daily news appears intent on convincing us of the contrary, so insistent and pervasive are the privacy violations it portrays. There is also a great deal of normative indeterminacy in the expectations on which privacy rests. Yet it is clear that, in a vast number of circumstances, people can expect others to be bound by an obligation to respect their privacy. For all their seeming fragility, these expectations are immensely powerful. So much so that the whole edifice of the law rests on them. The visible face of privacy expectations may be that of their pervasive disappointment. Much more prevalent, however, are those less visible situations where the boundaries of access obtain, where privacy is preserved and, with it, the spaces for the development of human subjectivity. It is only through the discreet workings of such boundaries that law can exist – that law can pass – as a normative order. For law, thus, protecting privacy is an existential affair. Privacy, human subjectivity, and the law hold, in other words, a relationship of reciprocal necessitation; a relationship so profound it might be said that, like space, time, and the universe, none of these ideas would be able to exist without the others. Together, they form a biographical core of legal normativity. Understanding how they intertwine has important implications for how we approach each of them as a concept. Pursuing such an understanding is the chief aim of the pages that follow. There are immediate theoretical reasons for pursuing this inquiry. On privacy, it provides an answer to the question at the beginning of this paper, enabling us to observe how the origin of the force of privacy is bound with that of law itself. On law, it not only addresses contemporary social theories that see law emerging in non-human realms, but also highlights how law and morality are intertwined, before any interpretive enterprise, at the very genesis of the interpreter. On human subjectivity, it invites us to revisit theories according to which law exists to address certain normative defects or perform certain functions, but which refrain from fully acknowledging the human dimension of such tasks. Beyond situated theoretical gains, however, carrying out this inquiry is, I believe, an existential task for jurisprudence. It is so as it highlights how pursuing and institutionalizing the best normative interpretation of human subjectivity and its boundaries might, in the end, be the central task of any legal system, and a task on which the very existence of law depends. One could think here of an allegory in which, through the looking glass, law seeks to interpret human subjectivity, while human subjectivity conducts the same interpretive survey regarding the law. But that could raise the question of whether the relationship between law and human subjectivity is then purely one of mutual reflexivity and interaction between beings that display episodic curiosity about but otherwise remain external to each other. A better illustration would be M. C. Escher’s lithograph of two hands drawing each other in a strange loop. Law and human subjectivity, in effect, constitute each other. Their origin and their boundaries, their fate and their force are intrinsically and reciprocally intertwined. Privacy is the quintessential realm where this relationship takes place. It is here that law probes the reasonableness of the boundaries between human subjects, and between these and the world around them, institutionally recognizing such boundaries, and lending thus some fixity to them. Those are also the boundaries from within which human subjectivity, like the hand in Escher’s drawing, emerges to further constitute the law. Yet human subjectivity does not arise casually. It calls for institutional membership in the community of legal beings. It needs recognition from the law before it can, in turn, shape the law. Such a recognition is given, and queried in each raise of hands, through personhood. Personhood, the institutional face of human subjectivity, defines membership within the law. This membership comes with certain capacities, which in turn are differentiated on the grounds of certain statuses. But all these are laid out in fairly general and non-negotiable terms, attaching to whoever falls into a certain legal position. Privacy, instead, contains as much objectivity as subjectivity; it follows, traces, and further enables the development of human subjectivity as it unfolds. In doing so, it extends and individuates the institutional contours of human personhood, in the light of expectations that are recognized as reasonable in the law. Law exists through these expectations, as they enable the rational exercise of the capacities, faculties, and powers – whilst addressing the shortcomings and vicissitudes – of the beings on whose existence law depends; that is, human beings, beings through and for the sake of whom law exists. Before we take this exploration further, a note is due on the usefulness of our inquiry. It may seem obvious to affirm that law cannot exist without the recognition of human subjectivity and the consequent enablement of the conditions for its development. Indeed, if human flourishing is not seen as an end of the law, to what end, then, does law provide people with reasons for action; to what end does law mediate ‘between people and the right reasons that apply to them’? For however maligned the very thought of what ‘right reasons’ might be, there would be something profoundly inconsistent, delirious even, in denying that the value of human subjectivity is one such reason. The recognition of human subjectivity and its boundaries is, at the same time, end and condition of the very idea of normativity – or at least of forms of normativity whose reflective, central-case viewpoint is that of human beings. And the institutional order of the law is one such form.

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