One pertinent example: most biologists look at the diversity of species and say that evolution by natural selection (with at least a hint of randomness) is the best explanation, whereas believers in Intelligent Design see God’s hand at work. Given a certain view of available evidence, both explanations might be possible (especially if an all-powerful God simply creates everything, including fossils, in situ). So how can we resolve this problem whereby a set of facts can justifiably be argued to support multiple potential theories?

One approach is to limit ourselves to certain kinds of theories as potential explanations: science tends to allow for only theories that are potentially testable, verifiable, falsifiable, etc. Most scientists say, despite arguments to the contrary, that the existence of a divine presence guiding evolution is simply out of bounds for scientific inquiry. It’s a matter for faith, not empirical inquiry; it’s religion, not science.

Of course, as John Hedley Brooke points out, the meaning of the terms “science” and “religion” has changed over time, and “it is more appropriate to speak of ‘sciences’ and ‘religions.’ When we do, any simple dichotomy loses its rigidity” (297). Thus, for example, the term “science” once included any organized body of knowledge (which would have included theology), though now it has a more specific meaning. “Religion,” too, only emerged as a useful term when “comparative approaches were needed for the analysis of different cultures … in the Enlightenment” (297). Still, the distinction is at least analytically useful, and however historically suspect, it is relied upon by most writers today.

Another approach to managing the (potentially illusory) conflict between science and religion is favored by Owen Gingerich, astronomer and author of God’s Universe. He turns to Aristotle to help differentiate two kinds of explanation put forth by science and religion. Put in Aristotelean terms, faith can be seen as a search for “final” causes, while traditional science could be said to stick instead to “efficient” causes. There is thus no conflict between science and religion, and no worries about underdetermination traceable to this conflict, since each explains different things.

Gingerich looks to Blaise Pascal’s notion that “some things only the heart knows” to explain this idea and justify his belief in (small case) “intelligent design.” Since science cannot know or determine certain truths (final causes, in Aristotelian terms), we can freely posit a (distant) intelligent designer without worrying about stepping on scientific concepts of proof. In essence, two truths become simultaneously possible, because they occupy different domains of truth. Intelligent Design (not Creationism, and not the lower-case “intelligent design” of Gingerich), on the other hand, believes that science can be used to access the truth of an intelligent creator, and that this search is scientific.

Creationism, on the other hand, tends to reject science more firmly (but not, interestingly, technology). It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. Of course, today’s Biblical literalism is only related to, but not identical with, 16th-century exegesis. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.

So how did followers of Copernicus in the 16th century deal with the issue of causation, given the power of Biblical exegesis at the time? They did so by arguing that scripture itself underdetermines potential explanations — even if it can shut down blatantly conflicting theories. Relatedly, Johannes Kepler tried an accommodation approach with literalism. He maintained that God, in order to be understood by normal people, caused the Bible to be written in ordinary language. This is why there are no discussions of epicycles in the Bible. The Bible thus accommodates ordinary folk with a different, non-scientific vocabulary that, if read correctly, does not conflict with science.

Of course, many — most? — of today’s scientists simply step outside of the argument, and point to materialist, naturalistic explanations as being all that is necessary for science — certainly they are the only valid scientific theories — even in religion can provide different kinds of explanations (which may or may not be important to the scientists personally). And how do they often justify this? Because these explanations work. Certainly this is the approach taken by most engineers and developers of technology, and perhaps, then, this is why Christian fundamentalists and Muslims have no trouble reconciling their faith with structural engineering or software development. They focus on the science that works in a materialist sense, and not the science that raises uncomfortable questions (evolutionary biology, for instance).

Alternatively, if this approach to dealing with underdetermination is dissatisfying, then there is always the choice to go to absolute knowledge, as David Bloor reminds us: if the Pope says it’s true, then no doubt exists, and we escape the problem of underdetermination and uncertainty. The Catholic Pope is not the only option, of course. Islam, despite its lack of central authorities, also relies on the authority of absolute knowledge — revelation from the Qur’an — to solve the problem of underdetermination. Medieval Islam appears to have successfully negotiated any potential conflict between Qur’anic knowledge and scientific knowledge. Modern Islam, on the other hand, is arguably still searching for the proper balance. Modern evangelical Christianity, too, seeks a new balance between science and faith.

Millenarianism — the belief in the end of this world and the coming of the next — is, in Noble’s view, a key driver of early proto-scientists, at least those in seventeenth-century England. There was, he argues, a sense at the time that the Fall of Adam from Eden “could be reversed” (45).

He describes these “Puritan Baconians” and their utilitarian and millenarian outlook as giving formative shape to modern science. He argues that these early scientists were really technologists: the early founders of the “new scientific academies … tended to view science as technology … as an enterprise … bound up … with the useful arts” (57).

Connected with this utilitarian perspective, for Noble, is the strong connection between scientific pioneers and early capitalist enterprise (59). He points to Robert Boyle’s father and other early Royal Society members who “were involved in such industries as tobacco, distilling, and trade” (59).[1]

Noble suggests, though, that these “founders of modern science” eventually moved away from earlier views of recovering Eden and, “with increasingly more hubris than humility,” began to speak of achieving of an understanding of divine creation itself, instead of the lesser focus on Adam’s knowledge characteristic of earlier times (62). In other words, they moved from being content with a focus on technology and “what works” to become scientists focused on questions beyond the materialistic.

Increasingly “mechanistic scientists” began to divorce God and creation, and to view God as outside his clockwork universe. They began to imagine themselves as occupying a similar, God-like perspective, one that gazed from “outside of nature”:

For Newton, then, to uncover the hidden logic of the universe was to understand and in that sense identify with, the mind of its Creator. (63-65)

This was very different from earlier views of “God in nature” that earlier hermetic and alchemical traditions — predecessors of modern “technoscience” — held.

In short, Noble argues that these early scientists began to dispense with a humble pursuit of the divine in nature and to instead view themselves as gods (67). (Perhaps a dislike of this hubris is why he identifies himself as a modern-day Luddite and refuses to use email.)

In his descriptions of eighteenth century European science, Noble continues to emphasize the importance of millenarian beliefs to the science and technology of this time. For example, Joseph Priestly, known for his work in electricity and with oxygen, insisted on the connections between his scientific work and his religious views, which included a belief in prophecy and Revelation. Priestly focused on the “practical application of science” to further the goals of “both immediate utility and millennial preparation” (71).

But it was not just Priestly. Religious belief generally motivated early scientists in this time, according to Nobel, who writes that Michael Faraday, known for his work with electricity, was involved in a sect of fundamentalist Christianity that focused on a very literal interpretation of the Bible (71). Charles Babbage, mathematician and industrial inventor, also focused on arguments “in favor of religion” (72). For Noble, religious belief and scientific pursuits were both unified and mutally supportive — at least in the minds of eighteenth-century European scientists.

Noble next moves into what I think might be the most intriguing aspect of this section of his work: his investigation of the role Freemasonry, including its “devoutly religious” — if anticlerical — beliefs, played in fostering scientific advances and improving the “useful arts” (77).

As the eighteenth century progressed, the technological Freemasons proved to be “among the earliest advocates of industrialization” and served as “midwives” at the birth of the “latest incarnation of spiritual men, the engineer” (79). Noble writes: “As the founding fathers of both the engineering profession and engineering education, the Freemasons passed on the legacy of the religion of technology to modernity’s ‘New Man’” (79).

Moving into nineteenth-century science, Noble turns his attention to Auguste Comte and his positivist system. Positivism, he argues, is “strikingly reminiscent of the Christian goal of a transcendent recovery of mankind’s original divine image-likeness and dominion over nature” (84). As with the millenarians, writes Noble, for positivists the “world’s transformation was inevitable and imminent” (84).

Marx and the socialists shared Comte’s “technology-inspired millenariasm” and carried the old beliefs forward into a “new secular age” (86). Comte and the positivists may have rejected nineteenth-century religion as unscientific, but, according to Noble, the scientific worldview they adopted instead was remarkably like the religion it replaced.

In a later chapter he calls “The New Eden,” Noble turns to America, where he believes “the useful arts became wedded to Adamic myths and millennial dreams” as “nowhere else before or since” (88). In America, “scientific and industrial revolutions followed in the wake of religious revival” (90). Technological inventions in America carried with them religious meanings. The telegraph, for example, was viewed as “divinely inspired for the purpose of spreading the Christian message farther … bringing closer and making more probable the day of salvation” (94).

In nineteenth-century America, religion and technology were neither distinct nor disconnected; instead, they both reinforced and strengthened each other.

But despite this deep connection between technology and religion, religion in the twentieth century moved away from being a driver of both technological invention and scientific innovation. Increasingly, religion has been seen as oppositional to science and technology.

Still, for many Christians this opposition is uneccessary and even problematic. For example, Noble explains tht NASA — at least into the Shuttle years — contained many devout Christians who saw their missions to space in deeply religious terms, and saw no conflict between their scientific and religious missions.

But what can one make, then, of the Young-Earth Creationismisms rejection of geological and evolutionary sciences? Or the ongoing attempts by Christian evangelicals to “teach the controversy” of evolution in high-school classrooms? Does this kind of fight prove Noble’s integration thesis wrong?

While I don’t think Noble fully answers these questions, his focus on technology perhaps suggests an answer. Science — or at least, some kinds of science — are not easy for some modern Christians to accept. But technology, even missions to the Moon or Mars, are much more readily reconciable with faith. They are, in older terms, explorations of God’s world, not challenges to God’s supremacy.

The Wealth of Networks by Yochai Benkler

In The Wealth of Networks: How Social Production Transforms Markets and Freedom, Yochai Benkler discusses his vision of the role of technology in social change. He rejects an overly deterministic vision of technology (which he connects with Lewis Mumford and Marshall McLuhan), but also rejects a view of technology as immaterial to a society’s direction:

A view of technologies as “tools that happen, more or less, to be there, and are employed in any given society in a pattern that depends only on what that society and culture makes of them is too constrained. A society that has no wheel and no writing has certain limits on what it can do.” (17)

Instead, he adopts a “simple” idea that is “distinct from a naive determinism”:

Different technologies make different kinds of human action and interaction easier or harder to perform. All other things being equal, things that are easier to do are more likely to be done, and things that are harder to do are less likely to be done. All other things are never equal. That is why technological determinism in the strict sense — if you have technology “t,” you should expect social structure or relation “s” to emerge — is false. (17)

To illustrate the point, he describes the different impacts that new ocean-going technologies had on Spain or Portugal (their land ambitions were curtailed by strong neighbors) and China (which focused inland). He also notes how the printing press impacted Protestant countries (where individual reading of the Bible was encouraged) differently than Catholic countries (where “where religion discouraged individual, unmediated interaction with texts, like France and Spain”).

He summarizes his position by saying the following:

Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations, and institutions easier to pursue, and others harder. (17)

In regards to modern networking technologies (like the Internet), he warns:

The same technologies of networked computers can be adopted in very different patterns. There is no guarantee that networked information technology will lead to the improvements in innovation, freedom, and justice that I suggest are possible. (18)

Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts — drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day — struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism — liberty, opportunity, progress, and individualism — and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24-25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations — passed in the name of protecting the public’s speech — infringes on their freedom of speech.

(Interesting note: this move — discussed in Balkin’s 2004 article — is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)

Image via Wikipedia

As I noted earlier in Civil law’s influence on American common law: the appeal, the Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on “equity” or fairness and justice.

The American legal system directly drew on the English one.  As noted above, the English legal system was really (at least) two parts: common law (the King’s Bench, Court of Common Pleas, etc.) and equity (the Courts of Chancery). The various new states, along with the federal court system, variously integrated or continued this separation — but generally emphasized the common law as the protector of the common man. This was the case even though the courts of equity had been for centuries the protector of principles of justice and fairness, while common-law courts had been seen as interested only in formal mechanisms through its rigid system of “writs.”

The relationship, though, was complex and not at all as simple as this. Common-law courts gave jury trials to those accused, and guaranteed the right to confront an accuser, while the courts of equity had no juries and took evidence in secret. Despite relying on judge-made precedents, the common-law courts became associated with Parliament against the King, while the equity courts (especially the notorious Star Chamber) dispensed royal justice (an appeal to equity was an appeal to the conscience of the king). Common-law juries refused to convict those they considered unjustly accused (especially for political reasons), regardless of the law (now called “jury nullification”). Common-law judges began to enforce both judge-made customary law and the statutes of Parliament.

Lawyers in the equity system in England were known as “civilians,” and historically had been trained in canon law. Canon law was the law of the Catholic Church, and derived from Roman civil law. With the break from Rome by Henry the VIII, the equitable system moved from an appeal to King and Pope to an appeal only to the King — but the sense of connection to Rome continued for many, and likely contributed to generally Protestant America’s suspicions of English equity.

Despite this suspicion, courts of equity were adopted into the American system in various ways. Some states kept distinct courts, others merged them, but all kept the remedies (typically, injections) afforded by the system as a necessary complement to the common-law remedies (typically, monetary awards only for non-criminal trials — though the common-law system gave us habeus corpus as a remedy against abuses of equity’s jailing of people for refusing to obey injunctions).

In effect, in both England and America, there has been an uneasy back-and-forth between courts of law and court of equity. Even when these have been merged into one body, there has been a continuing balancing and negotiation between common law’s methods and equity’s methods.

Civil law gave us the appeal to equity. Common law gave us habeas corpus and the jury. Equity gave us straightforward complaints written in the vernacular. Common law gave us the adversarial battle between attorneys. Equity gave us discovery.

In short, despite everything I was led to believe in law school, the United States (and England, for that matter) really has a hybrid civil/common-law system.

Related articles

• Civil law’s influence on American common law: the appeal (inpropriapersona.com)
• Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial (ssrn.com)

Spreading the news: the American postal system from Franklin to Morse By Richard R. John

In Spreading the News, Richard R. John writes about the development of the American postal system in the eighteenth century, and the police choices that leverages the system as a means of newspaper distribution.

The technological devices of the post and the newspaper were not new in the eighteenth century; horses, paper, and printing presses had been around for centuries. But the new American government prioritized newspaper delivery, and utilized postage fees from merchants to subsidize the development of profit-losing rural routes in order. Of course, the eighteenth and nineteenth centuries brought to Europe a new technological development of a different kind: bureaucracies and various corporate forms that more efficiently organized people and their actions.

Nonetheless, the technologies did not determine the outcome that John discusses, but rather enabled it. Instead, it was the policy choices in Washington, D.C. that determined (retrospectively, anyway) the outcome. These policies favored newspapers and avoided using the postal system (despite the fact that in the early nineteenth century it composed roughly 3/4 of the entire federal government and federal budget) to subsidize other federal activities. The result? A sense of national — and even world — identity beyond mere connection to one’s individual state or locality.

Image by spiralstares via Flickr

An article in Slate claims:

While legal automation will be a boon for those who can’t afford representation, it’s bad news for lawyers. The industry is already in a slump, and law school is no longer seen as a sure path to riches. Because software will allow fewer lawyers to do a lot more work, it’s sure to drive down both price and demand.

My opinion? Software won’t replace lawyers, but it will reduce the demand for certain routine legal services and raise the complexity of litigation. Those without the software will be at a disadvantage. It will also cut into the work of paralegals. But not lawyers.

(Part of this reminds me of the claims in the early 20th century that polygraph machines would replace juries, since machines could judge truth of falsity and revolutionize the entire legal process. That didn’t happen, of course.)

It’s true that being a lawyer today involves a great deal of drudge work, especially at the lower echelons, and certainly eliminating some of the most time-consuming parts of the profession has the potential to reduce the workload. But while computer programs to generate wills have cut back on the demand for bare-bones legal services, the general result, I think, has been to increase the number of written wills, not to reduce the people who consult a lawyer for more complex drafting. Similarly, I expect contract-writing tools to help create more written contracts, not to reduce the important of lawyers who write and review more complex deals. The result will, hopefully, be more routinized, written business processes — but may result in freeing lawyers to spend more time drafting complex documents that exceed the abilities of programs to interpret alone.

The basics of document review can already be outsourced abroad in some cases, and using machine processing is rather similar. It helps with the routine and frees up time for the more complex.

The law is a complex human construction because society is a complex human construction. As long as it stays that way (and as long as people form a society, it will), it will take humans versed in its complexities to manage it fully.

The Magic Mirror by Kermit Hall and Peter Karsten

The question of why we should do legal history at all is one that has occurred to me a number of times over the last few years. I have advocated — as I mentioned in previous remarks — the point of view that legal history provides access to more than just changes in statute or changes in judicial viewpoints. Legal history reflects broader and deeper social forces and social contexts. Each case reflects individual concerns of particular people at particular moments in time — but the judicial decisions (especially the appellate opinions) express larger social concerns beyond the specific case or controversy .

In The Magic Mirror: Law in American History, Kermit Hall quotes former Supreme Court Justice Oliver Wendell Holmes, Jr. (1902-1932) to support his version of my point:

This abstraction called the Law is a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!

Hall sums up his perspective on what the law is by saying that “law is a system of social choice, one in which government provides for the allocation of resources, the legitimate use of violence, and the structuring of social relationships” (Hall 1). Law is part of a social context: “Without society we need no law; without law we would have no society” (Hall 1).

Hall is points out two different approaches to legal history, one internalist and one externalist (a distinction science studies scholars also make). Internalist legal history looked at the “black-box” development of legal rules in a straightforwardly — if complex — chronological fashion. Externalist legal histories address larger questions of casual relationships: “We want to know the law by what it has done, or failed to do, or by what has been done to it, rather than simply by what it was” (Hall 2).

Law, then, is individual and personal, but “its meaning reaches to the values of society” as well (Hall 2). We must, says Hall — and I find myself in agreement — pursue both an internalist understanding of the rules and processes of law as well as an externalist understanding of the laws connection to society as a whole.

But really, each of these has choices is distinct, and in many cases their use-cases do not overlap. Carrier pigeons, for example, are really point-to-point messaging mechanisms, unless you have a flock — and they take time to breed, so they are a poor choice if you have need to keep people updated on a variety of different topics. And unlike the owls of Harry Potter, carrier pigeons go to places and not people — so tracking down your significant other in either Greece or Italy — why won’t they call? — is out. (You may, of course, find different ways to make these work for you — in the digital age, square pegs can be refactored to fit in round holes, after all.)

Image via Wikipedia

Facebook

Facebook is the ideal place for keeping in touch with real people I’ve really met, especially if I’m likely to lose track of them otherwise. It’s geographically diverse, lets me share enough to give people a sense they’ve got an idea what I’m up to, and (despite its best efforts otherwise) lets me otherwise stay private (with caveats). So who do I connect with on Facebook? Friends (of various levels) from high school, college, postgrad. Friends — not professional colleagues — from work. Tricky decisions of categorization abound, of course: is this colleague enough of a friend for me to connect with them on Facebook, or do they belong on LinkedIn only? Segregating people into groups with various privacy settings help, of course, as does not sharing things I don’t want the public to possibly see. Sure, this is friend-stuff, but nothing I put on Facebook would be too embarrassing, or cost me a job. Facebook has been pushing pages (AP, PBS, BBC, business generally) that share non-personal information, but I’m increasingly finding this a distraction from the reason I use Facebook: people.

Image via CrunchBase

LinkedIn

LinkedIn has been touted as the professional version of Facebook, but that’s only partly true. LinkedIn is not really about sharing day-to-day details about me, but rather about highlighting my accomplishments and work. But beyond that, it’s mostly a Rolodex of up-to-date business cards of people I’ve dealt with professionally. I will connect with any colleague (or one of my undergrads) on LinkedIn without hesitation, unlike on Facebook. In terms of privacy, well, the point is to be visible and findable professionally. So that’s what goes up there. No home addresses, no home telephone numbers, just business contact details.

Image via CrunchBase

Twitter

Twitter is for link sharing and quick conversations (very quick, and very short) with absolutely anyone I find remotely interesting. I don’t refollow anyone who follows me, only those I think are interesting. I share things I want to broadcast with the world (but am too polite to get a bullhorn). Sometimes it’s personal, sometimes professional, but always with the idea that anyone might read it. It’s great for more distant connections with people I may or may not ever meet, but who say and write about interesting things.

Image via CrunchBase

Google Plus

Google Plus is the new player, but it brings in some of the best of both Twitter and Facebook. Yes, I can put my actual friends in circles and easily limit what I share with just them (so that’s a bit like Facebook, but more focused). No, not everyone I know on Facebook is on Google Plus (and may never be). Google Plus also lets me follow people I’ve never met who say interesting things, like Twitter, but it emphasizes longer posts and more detailed, threaded conversations — without forcing me to dance with privacy settings as on Facebook, and without assuming these people are actually my friends (even if they could be). In many respects, I’m finding that it challenges quick-blogging services like Posterous and Tumblr more than Facebook or LinkedIn. It does seem a potential threat to Twitter, which I am finding myself more and more viewing as a social link sharing service as opposed to a discussion mechanism (but it’s GREAT for that).

Summary

So, here it is in short form:

Facebook: real people, real sharing of personal (but not too personal) information. If you actually know me in “real life,” friend me. If not, go elsewhere. I share semi-personal stuff here (what I had for dinner and who made it).

LinkedIn: real people doing real business networking. If I’ve met you in a professional capacity, connect with me. If not, well, tell me why we can do business! I share only professional info here.

Twitter: on the Internet, no one knows if you’re a dog, but we do care if you have something interesting to share. If you do, follow me and I might follow you back. If you don’t, follow me and I won’t follow you back. I share thoughts and links here.

Google Plus: real people (for now) sharing what they found interesting today, including articles, thoughts, stories, and photos. If you actually know me, I might add you to my Friends circle; if not, but you are interesting, you’ll make Following. Please give me commentary with your links!

Maybe next week I’ll explain how I use carrier pigeons.

Related articles

• Google+ will be squeezed out of social world, says LinkedIn CEO – Computerworld (mbcalyn.wordpress.com)
• It’s Google Plus vs. Twitter, Not Facebook (scalableintimacy.com)
• Different social networks for different purposes (inpropriapersona.com)

But what was the right that judges were beginning to recognize? Wilfred Feinberg‘s 1948 “Recent Developments in the Law of Privacy” suggests that the doctrine had developed further even as it was applied by judges:

[I]n addition to the interest in “privacy” as ordinarily understood, at least three separate interests were protected: interest in one’s history, interest in one’s likeness, interest in one’s name.

Interestingly, none of the interests Feinberg decides encapsulates a sense of a “right to privacy” as being the right of a citizen to be free from governmental interference in their private life or as an extension of, say, the Fourth Amendment. Instead, they are quite evidently an extension of Brandeis’ original reaction against newspapers digging into an individual’s life and sharing that for the prurient interest of a growing public.

So, first, the protection of “life history” is the right of a person to “keep private life private,” but it does not extend to protection against disclosure if “the public interest in obtaining information outweighs protection of his personal interest.”

Second, Feinberg describes the interest held by a person “in his likeness [which] can be injured either by disclosure or appropriation.” Disclosure via publication of a photograph of a person in public is not actionable. He posits a theory of waiver: “by exposing your countenance to public view, you waive the right to protest disclosure to others of your likeness caught in a photograph.” (Compare this idea to the idea of a “reasonable expectation of privacy” as developed later in Katz.)

Appropriation, on the other hand, is actionable, since any waiver only implies “consent to having others see your face, not consent to having the defendant use it for his own financial benefit.” Additionally, enforcement (unlike with disclosure) is easier, and likelihood of actual harm increased, so so many more people are exposed to the image.

Thirdly, Feinberg discusses the “Interest in Name”: appropriation of a person’s name without their consent is actionable on the basis of a privacy violation. Thus, it is not merely “fraudulent” (and thus actionable on a criminal basis or on the basis of reliance or similar by the recipient), but also on the basis of violating a person’s interest in their own name per se.

And finally, Feinberg returns to discuss what is meant by the more “normal” definition of a “right to privacy”: “i.e., not to be looked at, not to be followed, not to be written to, etc.” (He refers to Pritchett v. Board of Comm’rs (1908), Hawks v. Yancey (1924), and Shultz (1913) to support his description.)

This right does include protection from eavesdropping devices, “entirely apart from trespass” (see McDaniel v. Atlanta Coca-Cola Bottling Co. (1939)). Nonetheless, Feinberg’s discussion situations the right as being quite similar to trespass in many respects.

Feinberg’s discussion is an intriguing look into the state of privacy law as of 1948, and situate it squarely in line with Brandeis’ article, which also reacted to prevent the potential harm of new technologies:

The possibilities of injury to the interests [the privacy doctrine] protects will increase with wide commercialization of such new means of communication as television and facsimile newspapers.

Related articles

• Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
• Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)
• Do We Have a Right to Privacy? (socyberty.com)