Annabelle Lever

Human gene patents are patents on human genes that have been removed from human bodies and scientifically isolated and manipulated in a laboratory. The U.S. Patent and Trademark Office (the USPTO) has issued thousands of patents on such genes, and patents have also been granted by the European Patent Office, (the EPO). Legal and moral justification, however, are not identical, and it is possible for a legal decision to be immoral although consistent with legal precedent and procedure. So, it is surprising to learn that some people believe that the legal justification of human gene patents can remove the most serious moral objections to them. Yet, those who are well-versed in patent law often believe that confusion over some quite basic legal and scientific facts accounts for moral objections to such patents and, in particular, for the belief that they justify the ownership of one person by another. Once these confusions are removed, they contend, we will see that there is nothing especially alarming about patents on human genes, and no reason to believe them immoral. Such claims seem especially surprising because the morality of an invention is generally supposed to have little role in decisions about whether or not an invention deserves a patent under U.S. law. Although the European Patent Convention’s article 53 (a) prohibits patenting inventions, the publication or exploitation of which would be contrary to public order or morality, it turns out that this clause rarely justifies withholding a patent from an invention that otherwise meets legal criteria. Thus, although more than 320,000 patents have been granted by the EPO since its creation, this clause has never been used successfully to strike down a claim for a patent. Indeed, Ulrich Schatz explains, “Poisons, explosives, extremely dangerous chemical substances, devices used in nuclear power stations, agro-chemicals, pesticides and many other things which can threaten human life or damage the environment have been patented, despite the existence of the public order and morality bar” in almost all European countries. Indeed, this paper shows, while ethical objections to human gene patents are often controversial, they need not be unreasonable, nor need they depend on mistaken assumptions about patent law. Rather, they may reflect familiar ethical concerns about the dominance of commercial imperatives in modern societies; concerns about the disparities in power and wealth amongst individuals and countries; and concerns about the lack of public discussion, transparency and accountability surrounding significant changes in people’s rights, status and opportunities. Hence, I conclude, ethical concerns cannot be easily dismissed and, indeed, point to the need to think harder about the nature and justification of patent law, itself.

Should voting be compulsory? Many people believe that it should, and that countries, like Britain, which have never had compulsion, ought to adopt it. As is common with such things, the arguments are a mixture of principle and political calculation, reflecting the idea that compulsory voting is morally right and that it is likely to prove politically beneficial. This article casts a sceptical eye on both types of argument. It shows that compulsory voting is generally unjustified although there are good reasons to worry about declining voter turnout in established democracies, and to worry about inequalities of turnout as well.

This book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. Contrary to this conception, the authors defend a positive interpretation where the rule of law results from the strategic choices of relevant actors. Rule of law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to law, does law rule. What distinguishes 'rule-of-law' as an institutional equilibrium from 'rule-by-law' is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest

It is especially hard, at present, to read the newspapers without emitting a howl of anguish and outrage. Philosophy can heal some wounds but, in this case, political action may prove a better remedy than philosophy. It can therefore feel odd trying to think philosophically about surveillance at a time like this, rather than joining with like-minded people to protest the erosion of our civil liberties, the duplicity of our governments, and the failings in our political institutions - including our political parties – revealed by the succession of leaks which have dripped away this the summer. Still, philosophy can help us to think about what we should do, not merely what we should believe. Thus, in what follows I draw on my previous work on privacy, democracy and security, in order to highlight aspects of recent events which – or so I hope – may prove useful both for political thought and action.

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist: reflecting the ability of judicial review to express and protect citizen’s interests in political participation, political equality, political representation and political accountability. The point of judicial review is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, trustworthiness or competence of judges and legislators. Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges. Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals in justifying power and authority. Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy.

According to Corey Brettschneider, we can protect freedom of religion and promote equality, by distinguishing religious groups’ claims to freedom of expression and association from their claims to financial and verbal support from the state. I am very sympathetic to this position, which fits well with my own views of democratic rights and duties, and with the importance of recognizing the scope for political choice which democratic politics offers to governments and to citizens. This room for political choice, I believe, is necessary if people are to have any chance of reconciling the conflicting moral and political obligations they are likely to face, however idealized our conception of democracy or morality. Granted that no amount of personal and political choice will ever guarantee that we do not encounter tragic choices, and painfully conflicting moral demands, it is an important feature of democracy – or so I believe – that its rights reflect the importance of mitigating these conflicts so that people are able, as a rule, to act as they ought, so that they do not experience their moral sentiments, beliefs and capacities simply as grounds for recrimination, alienation and despair. I therefore believe that democracies have good reason not to force the consciences of the undemocratic and the intolerant, where it is possible to accommodate such people without threatening the rights of others. However, the fact that I share many of Brettschneider’s intuitions and beliefs does not mean that I share them all. In particular, I find his conception of democracy unduly narrow, and unduly based on a rather idealized conception of the American constitution which is unlikely to appeal to those whose conceptions of democracy are more republican, more socialist, more pragmatic and more international than his. I have explained these worries elsewhere and drawn out some of their implications for his arguments about privacy and judicial review. There is no need to repeat them here. I will also set to one side my worries about his uninflected, overly abstract and rather reified characterization of the State, in the hope that others will discuss this and that, in the end, a more nuanced conception of the State and a more lively appreciation of the conflicting people, institutions, histories and norms which make up most states, will prove consistent with his arguments. Finally, I do not propose to enter into a detailed discussion of the difficulties of Brettschneider’s overly abstract and reified conception of State ‘speech’ and ‘expression’ which, while motivated by the language of American constitutionalism, appears to cover pretty much anything a government might do, from raising and spending taxes, to accepting judicial interpretations of contested constitutional provisions, or to affirmatively pronouncing on the goals that will animate its legislative agenda and its aspirations for citizen’s lives. Again, while I would have wished for a more nuanced and analytical discussion of so central a concept as ‘expression’ and, in particular, expression by ‘the State’, I am uncertain that anything fundamental in Brettschneider’s account of citizen rights and duties would be altered in the process. Instead, then, I want to focus on points in Brettschneider’s argument that intrigue, and sometimes puzzle, me the most and where issues of nuance and clarification might make a substantial difference to our views of equality and religious freedom.

Does it matter that almost all juries in England and Wales are all-White? Does it matter even if this result is the unintended and undesired result of otherwise acceptable ways of choosing juries? Finally, does it matter that almost all juries are all-White if this has no adverse effect on the treatment of non-White defendants and victims of crime? According to Cheryl Thomas, there is no injustice in a system of jury selection which predictably results in juries with no minority members so long as this result is not deliberate, and does not adversely affect the treatment of minority defendants and victims of crime. My view is different. In and of itself, I believe, something is wrong with a system of jury selection that predictably results in all-White juries in a diverse society, such as our own. Absent reason to believe that we lack a better alternative to current modes of jury selection, a commitment to democratic government and to the equality of citizens – or so I will argue – condemns existing arrangements as unjust, whether or not they have adverse effects on jury decisions, or on the ways in which our society approaches issues of race and crime.

Does the wide distribution of political power in democracies, relative to other modes of government, result in better decisions? Specifically, do we have any reason to believe that they are better qualitatively – more reasoned, better supported by the available evidence, more deserving of support – than those which have been made by other means? In order to answer this question we examine the recent effort by Talisse and Misak to show that democracy is epistemically justified. Highlighting the strengths and weaknesses of their arguments, we conclude that the differences between an epistemic conception of democracy and an epistemic justification of democracy are fundamental to determining the relative attractions of different arguments for democracy, and their implications for actual forms of government.

Should voting be compulsory? This question has recently gained the attention of political scientists, politicians and philosophers, many of whom believe that countries, like Britain, which have never had compulsion, ought to adopt it. The arguments are a mixture of principle and political calculation, reflecting the idea that compulsory voting is morally right and that it is will prove beneficial. This article casts a sceptical eye on the claims, by emphasizing how complex political morality and strategy can be. Hence, I show, while there are good reasons to worry about voter turnout in established democracies, and to worry about inequalities of turnout as well, the case for compulsory voting is unpersuasive.

According to Mathias Risse and Richard Zeckhauser, racial profiling can be justified in a society, such as the contemporary United States, where the legacy of slavery and segregation is found in lesser but, nonetheless, troubling forms of racial inequality. Racial profiling, Risse and Zeckhauser recognize, is often marked by police abuse and the harassment of racial minorities and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does not mean that all forms of racial profiling are unjustified; nor, they claim, need one be indifferent to the harms of racism in order to justify racial profiling. In fact, one of the aims of their paper is to show that racial profiling, suitably understood, “is consistent with support for far-reaching measures to decrease racial inequities and inequality.” Hence, one of their most striking claims, in an original and provocative paper, is that one can endorse racial profiling without being in any way indifferent to the disadvantaged status of racial minorities. In an initial response to these claims, I argued that Risse and Zeckhauser tend to underestimate the harms of racial profiling. I suggested two main reasons why they did so. The first is that they tend to identify the more serious harms associated with profiling with background racism, and therefore to believe that these are not properly attributable to profiling itself. The second reason is that they ignore the ways in which background racism makes even relatively minor harms harder to bear and to justify than would otherwise be the case. Hence, I concluded, racial profiling cannot be a normal part of police practice in a society still struggling with racism, although under very special conditions and with special regulation and compensation in place, it might be justified as an extraordinary police measure. I want to stand by those claims. However, Risse’s response to my arguments persuades me that I misinterpreted his earlier position in one significant respect. So I will start by explaining what interpretive mistake I believe that I made. I will then argue that despite Risse’s patient and careful response to my arguments, my initial concerns with his justification of profiling remain valid. -/- .

Liberal egalitarians such as Rawls and Dworkin, insist that a just society must try to make sure that socio-economic inequalities do not undercut the value of the vote, and of other political liberties. They insist on this not just for instrumental reasons, but because they assume that democratic forms of political participation can be desirable ends in themselves. However, compulsory voting laws seem to conflict with respect for reasonable differences of belief and value, essential to liberal egalitarians. Nor is it clear that such laws would actually achieve their intended purpose. Consequently, it is doubtful that there is a ‘liberal defence of compulsory voting’, as Lacroix, among others, maintains.

Must privacy and freedom of expression conflict? To witness recent debates in Britain, you might think so. Anything other than self-regulation by the press is met by howls of anguish from journalists across the political spectrum, to the effect that efforts to protect people’s privacy will threaten press freedom, promote self-censorship and prevent the press from fulfilling its vital function of informing the public and keeping a watchful eye on the activities and antics of the powerful.[Brown, 2009, 13 January]1 Effective protections for privacy, from such a perspective, inevitably pose a threat to democratic government via the constraints that they place on the press. Such concerns with privacy must be taken seriously by anyone who cares about democratic government, and the freedom, equality and wellbeing of individuals. But if it is one thing to say that privacy and freedom of expression cannot always be fully protected, it is another to suppose that protections for the one must always come at the expense of the other. After all, the economics of contemporary politics and journalism would seem to be partly responsible for our difficulties in protecting personal privacy while sustaining robust and informative forms of public discourse. [Moore, 2010, 10 -141]2 Most newspapers are loss-making businesses and the need to reduce those losses and, if possible, to turn a profit, make investigative journalism an increasingly expensive proposition as compared to both “comment” and more or less elevated forms of gossip. At the same time, politics has increasingly become the prerogative of a narrow group of people with access to the large sums of money necessary successfully to compete for high office. In those circumstances, the need for critical scrutiny is as important as it is difficult. Revising our ideas about privacy and its protection cannot alone reduce the tensions between freedom of expression and personal privacy typical of our societies, necessary though such revision may be. Moreover, this paper can only touch on some aspects of the ways in which we need to rethink our interests in privacy, in order adequately to reflect people’s diverse interests in freedom of expression, and the important role of a free press to democratic government. Nonetheless, I hope to suggest ways of thinking about people’s claims to privacy which can be generalised fairly readily, and can help us to think constructively about the nature, causes and solutions to some important social and political problems, even if, in its nature, philosophical analysis rarely tells us what to do. More specifically, this paper argues that people are entitled to keep some true facts about themselves to themselves, should they so wish, as a sign of respect for their moral and political status, and in order to protect themselves from being used as a public example in order to educate or to entertain other people. The “outing” - or non-consensual public disclosure - of people’s health records or status, or their sexual behaviour or orientation is usually unjustified, even when its consequences seem to be beneficial. Indeed, the paper claims, the reasons to reject outing, as inconsistent with democratic commitments to freedom and equality, are reasons to insist on the importance of privacy to freedom of expression. While a free press is of the utmost importance to democratic government, it is not identical with the free expression of individuals and, on occasion, the former may have to be constrained in order to protect the latter. [Barendt, 2007, 231]. Hence, the paper concludes, we should distinguish the claims of individuals to publish reports about their lives – even if this necessarily involves revealing the private lives of others – from journalistic claims to publish information about the sex lives of consenting adults. I will start by briefly situating my argument within a democratic approach to privacy, before using the “outing” of Oliver Sipple to examine people’s claims to privacy and their implications for freedom of expression and of the press. I will be assuming that some forms of privacy are legitimate, in order to focus more closely on the question of what information, if any, people may keep to themselves.

According to Robert Talisse, ‘we have sufficient epistemological reasons to be democrats’ and these reasons support democracy even when we are tempted to doubt the legitimacy of democratic government. As epistemic agents, we care about the truth of our beliefs, and have reasons to want to live in an environment conducive to forming and acting on true, rather than false, beliefs. Democracy, Talisse argues, is the best means to provide such an environment. Hence, he concludes that epistemic agency, correctly understood, supports the legitimacy of democracy. This reply highlights the interest, but also the difficulties, of this argument and, in particular, of its assumptions about epistemic agency, morality and democracy.

James Rule is puzzled by the ‘idiosyncratic’ approach that I take to the philosophical study of privacy. As evidence for this idiosyncracy, he cites my relative indifference to the distinction between consequentialist and deontological perspectives on privacy although these differences are proof of ‘intricate, yet enormously consequential intellectual tensions’. My choice of philosophical topics is ‘unsystematic’ and more a reflection of my own ‘intellectual hobby-horses’ than a ‘well-worked-out view of what students most need to know’. Finally, Rule concludes, because ‘the most important privacy questions are excruciating’, we need ‘more systematic guidance than is provided here’. I am grateful to the editors for the chance to respond to these complaints.

Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, we can meet the philosophical and political need for a distinctively democratic conception of privacy. This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government. Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens. It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one. As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature. The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society. In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality. Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy. This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy. In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy. The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government. These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy. Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women. That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so. This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right. However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy.