J. Cohen on Privacy

Revista Argentina de Teoría Jurídica, Vol. 6, 2005

7 Pages Posted: 27 Jul 2017

Date Written: 2005

Abstract

In “Privacy, Pluralism, and Democracy”, Joshua Cohen develops a sensible view on privacy, a controversial and, to some extent, elusive idea. He starts by distinguishing two areas where privacy seems to be important: the formal, public realm, in which the point is whether there should be a right to privacy, protected and enforced by law (particularly by constitutional law), and the informal, cultural realm, in which the issue is about conventions of privacy: to what extent we should, as a matter of decency, respect other’s private decisions and information, and avoid intrusion. Cohen’s view is antiskeptical regarding the first aspect: he defends a strong right to privacy as a matter of constitutional law and founds such a defense on his theory of deliberative democracy. On the contrary, he endorses a rather skeptical view on privacy as an informal convention. In this regard, he argues against Thomas Nagel, who has recently sustained a kind of “cultural liberalism”, which entails a strong duty of reticence.

In this comment, I will focus on two main points. First, I will claim that Cohen’s argument in favor of a constitutional right to privacy, which is based on his conception of deliberative democracy, is in tension with our common understanding about what privacy is. Second, and more important, I will claim that both Cohen and Nagel are partially right and partially wrong concerning our informal duties to respect privacy. I will stress an important distinction made by Cohen, which, in my view, enables us to think informal privacy in a different and richer way.

Keywords: Right to Privacy, Deliberative Democracy

JEL Classification: K10, K30

Suggested Citation

Rivera-López, Eduardo, J. Cohen on Privacy (2005). Revista Argentina de Teoría Jurídica, Vol. 6, 2005, Available at SSRN: https://ssrn.com/abstract=3007647

Eduardo Rivera-López (Contact Author)

Universidad Torcuato Di Tella ( email )

Minones 2159
1428 Buenos Aires, 1428
Argentina

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