The Private Sphere: An Emotional Territory and Its Agent [1 ed.] 1402066511, 9781402066528, 9781402066511

Citation preview

THE PRIVATE SPHERE

Philosophical Studies in Contemporary Culture VOLUME 15 Series Editor H. Tristram Engelhardt, Jr., Department of Philosophy, Rice University, and Baylor College of Medicine, Houston, Texas Associate Editor Kevin Wm. Wildes, S.J., Department of Philosophy and Kennedy Institute of Ethics, Georgetown University, Washington, D.C. Assistant Editor Lisa Rasmussen, University of North Carolina, Charlotte, USA Editorial Board Stanley Hauerwas, Duke University, Durham, N.C. Maureen Kelley, University of Alabama, Birmingham Terry Pinkard, Northwestern University, Evanston, Illinois Griffin Trotter, Saint Louis University, Missouri

The titles published in this series are listed at the end of this volume.

THE PRIVATE SPHERE An Emotional Territory And Its Agent

Mats G. Hansson Uppsala University, Sweden

Author Mats G. Hansson Uppsala University Sweden

ISBN: 978-1-4020-6651-1

e-ISBN: 978-1-4020-6652-8

Library of Congress Control Number: 2007938403 c 

2008 Springer Science + Business Media B.V. No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work.

Printed on acid-free paper. 9 8 7 6 5 4 3 2 1 springer.com

Foreword

The present work has emerged as the result of several years’ involvement in various multidisciplinary research projects which have been carried out within the Research Programme in Biomedical Ethics at Uppsala University, now the Centre for Bioethics at Karolinska Institutet and Uppsala University. I am grateful to various colleagues who have taken part, whether briefly or at length, in discussions of the concepts of privacy and integrity. Hearty thanks must go to Gert Helgesson, Ulrik von Essen, Pär Segerdahl and Richard Wessman who have read the initial version of the book and provided useful comments. I am particularly indebted to Pär for taking the trouble to read the whole manuscript a second time. Arne Öhman and his research group at the Psychology Section in the Department of Clinical Neurosciences at Karolinska Institutet read an earlier version of Chapters 3 and 4. This provided a constructive and rewarding discussion which was of particular value to me since psychology did not form part of my own professional training. Sven Danielsson and the members of his research seminar in practical philosophy at Uppsala University read Chapters 5 and 6 and offered constructive criticism. Their critical views helped me to try to express more clearly the aim of these chapters within the framework of the book as a whole. All the readers of the book or parts of it can certainly have reason to wish for further revisions or indeed for a different presentation of the problem of understanding the role of the agent in the private sphere. I alone am responsible for the final version with whatever residual defects it may still possess. I am also grateful to various bodies who have provided the economic support allowing me to carry out a multidisciplinary research project on questions relating to integrity. They are: Knut and Alice Wallenberg’s Foundation (the National Biobank Program within Wallenberg Consortium North and SweGene, the Swedish Council for Social Research, now the Swedish Council for Working Life and Social Research), the Foundation for Strategic Research, the Ethical, Legal and Social Aspects of Genome and Gene Technology Research (ELSA) Programme and the Swedish Agency for Innovation Systems, VINNOVA).

v

vi

Foreword

Translation The manuscript has been translated by Dr. Craig McKay. Besides his language expertise I have benefitted greatly from his philosophical insights and his personal interest in questions related to privacy and integrity. I have really enjoyed our conversations this spring and I am grateful to him for the skill, time and effort he has brought to the project at this final stage. Uppsala, 3 August 2007 Mats G. Hansson

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A New Approach to Understanding the Concepts of Privacy and Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Four Literary Contributions as an Introduction to Understanding the Concept of Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Juhani Aho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Carl-Erik af Geijerstam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sven Barthel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Private Sphere from a Historical and Cultural Perspective . . . . . . The Private Sphere as an Emotional Territory – A Psychological and Evolutionary Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Integrity as Something Which is Morally Worth Protecting . . . . . . . . . Respect for the Individual as a Person with Moral and Political Authority – Integrity from a Philosophical Perspective . . . . . . . . . . . . . Balancing Seclusion and Participation – Integrity from the Perspective of Moral Philosophy, Jurisprudence and the Law Integrity as a Quality Worthy of Esteem and Respect . . . . . . . . . . . . . . The Relationship Between Privacy and Integrity . . . . . . . . . . . . . . . . . . 1 The Private Sphere from a Historical and Cultural Perspective . . . . . . . 1.1 In the Supposed Seclusion of the Home . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 What Will the Neighbours Say? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Power Over Spiritual Life and Thought – The Private Sphere from a Religious Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 To Retire with a Book – The Private Sphere from a Literary Perspective 1.5 To Participate in Drawing a Line Between What Is Public and What Is Private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Private Sphere as an Emotional Territory – A Psychological and Evolutionary Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Emotions Which Are Constitutive for a Person’s Private Sphere . . . . . 2.2 The Emotional Territory’s Significance in Evolutionary Development 2.3 Integrity – A Composite Property of the Individual . . . . . . . . . . . . . . . .

1 1 3 3 6 7 8 9 11 12 13 13 14 15 16 22 25 29 32 33 33 38 42 vii

viii

Contents

2.4 Three Candidates: Fear, Embarrassment and Pride . . . . . . . . . . . . . . . . 43 2.5 The Role of the Emotions in the Establishment of Social Order – Dominance and Submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 2.6 The Experience of Self . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 3 Integrity as Something Worthy of Moral Protection . . . . . . . . . . . . . . . . . 3.1 A Teleological Perspective with Regard to Integrity . . . . . . . . . . . . . . . 3.2 The Moral Value of Protection Originating in the Individual’s Capacity for Sentient Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Moral Value of Protection from the Viewpoint of the Individual’s Capacity for Action . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Integrity as a Socially Significant Property – The Starting Point for Moral Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Respect for the Individual as a Person with Moral and Political Authority – Integrity from a Philosophical Perspective . . . . . . . . . . . . . . 4.1 Individual Freedom Meaningful First in a Social Context . . . . . . . . . . 4.2 Individual Freedom Exhibited at Different Social Levels . . . . . . . . . . . 4.3 A New Approach to Self-Determination . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Social Recognition: From Separation to Participation . . . . . . . . . . . . . . 4.5 Respect for Integrity as Social Recognition . . . . . . . . . . . . . . . . . . . . . . 4.6 The Individual as a Person with Moral and Political Authority . . . . . . 4.7 Participating with Knowledge, Insight and Influence . . . . . . . . . . . . . .

53 54 56 59 63 71 73 76 78 80 82 86 88

5 Balancing Seclusion and Participation – Integrity from the Perspective of Moral Philosophy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 5.1 Is the Protection of Private Life Adequately Covered by Other Rights? 94 5.2 Social Conventions Shift the Boundaries . . . . . . . . . . . . . . . . . . . . . . . . 95 5.3 The Basic Interest in Avoiding Certain Types of Insight and Invasion 98 5.4 The Value of a Differentiated Social Life . . . . . . . . . . . . . . . . . . . . . . . . 99 5.5 Non-interference Does Not Solve the Dilemma of Balancing Interests 101 5.6 Basis for Balancing Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 6 Legal Protection – Privacy and Integrity from the Perspective of Jurisprudence and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 6.1 The Declarations Set the Basic Tone . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 6.2 The Significance of the Private Sphere for Democracy . . . . . . . . . . . . . 113 6.3 The Right to Protect What Is One’s Own . . . . . . . . . . . . . . . . . . . . . . . . 114 6.4 Legislation Arrives at the Same Result but in Different Ways . . . . . . . 116 6.5 Focussing on a Careful Legal Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 6.6 The Limitations of the Consent Norm . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 6.7 Respect for Private Life as a Complement to the Consent . . . . . . . . . . 125 7 Integrity as a Quality Worthy of Esteem and Respect . . . . . . . . . . . . . . . . 133 7.1 The Continuity of the Concept of Integrity . . . . . . . . . . . . . . . . . . . . . . . 133 7.2 Being True to Oneself and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Contents

ix

7.3 Integrity as Both a Personal and Social Property . . . . . . . . . . . . . . . . . . 140 7.4 In Contact with the Internal Goal of an Activity . . . . . . . . . . . . . . . . . . 141 7.5 The Moral Substance Psychologically Grounded . . . . . . . . . . . . . . . . . 144 8 Conclusions and Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 8.1 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 8.1.1 What Is Integrity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 8.1.2 Why Ought One to Respect an Individual’s Integrity? . . . . . . . 152 8.1.3 How Should the Interest of Integrity be Weighed Against Other Interests? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 8.2 Ethical Considerations Involved in Balancing Interests in Biobank Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 8.2.1 Biosamples Taken for Different Purposes . . . . . . . . . . . . . . . . . 154 8.2.2 Genetics as Hyperbole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 8.2.3 To Be Left in Peace but at the Same Time to Participate . . . . . 158 8.2.4 To Participate in the Development of Medical Knowledge . . . 160 8.2.5 The Integrity of the Researcher and Persons in Authority . . . . 161 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

Introduction

A New Approach to Understanding the Concepts of Privacy and Integrity The word privacy carries with it a positive valuation. It is frequently used, both in political and legal contexts, and it is taken for granted that it is important to respect the individual’s or family’s private spheres. It can be the case of persons who have the right to a private sphere also when they are in hospital as a patient. In one legal case, the complaint was made that the defendants had accessed computerized patient records of a well-known person without proper authority. The latter’s private sphere had been invaded, even although no direct physical or mental damage had occurred. The requirement in such a situation that a person’s privacy should be respected can be thought to be justified by the circumstance that every human being has the right to determine who is allowed to have an insight into personal matters or to have access to information relating to that person as a private individual. From a psychological viewpoint, the scope of the private sphere, which a person wishes to define in this way, will be found to vary greatly. Whereas one person may be very unwilling to provide private information, another will freely expose themselves, both physically and with regard to their inner tendencies and thoughts. Some people look upon the fact that they can be observed through a window by a stranger as invasive, whereas others accept it without difficulty as part of the price to be paid for living in a town. Many people would undoubtedly react with a feeling of distress when their home is broken into by unwelcome guests. To discover that their homes have been searched, their personal effects turned over, and items of great personal value stolen or damaged, can in certain cases have severe repercussions on those who experience such a violation. It takes a long time for people to recover from the incident. Certain other people scarcely react, apart from registering a feeling of irritation because the police and the insurance company have to be contacted. Different individuals impose different limits upon other people’s insight into their personal lives and this would seem to vary greatly, both within a particular culture and between cultures. Even within the family, members view the private sphere differently. In ethical and legal studies it is common to define privacy in terms of seclusion. The individual is taken to have a strong interest in being left in peace from outside insight and interference in what is regarded as the individual’s own personal affairs. This has been the dominant approach in theorizing both about the concept M.G. Hansson, The Private Sphere,  C Springer 2008

1

2

Introduction

of privacy and in connection with discussions of a supposed right to a protected private life. The private sphere is a zone of non-interference, which is separate from others, a protected zone specially set aside for the individual or the family. The non-interference perspective is common when theorizing about the protection of the private life of individuals and their families. In my view, however, this accepted way of looking at things, leads our thoughts astray. It fails to do justice to the interest of the individual and family, both in being allowed to be left in peace but at the same time participating in a community together with other people. To be washed up on a desert island gives unlimited seclusion from others but most people would regard it, at least after some time, as a case of undesirable isolation. Individuals seek an opportunity for a private sphere, which is part of a larger social space in which they participate in various types of social relationships together with other individuals. Within the family, individuals wish people to respect that certain matters are deeply personal, but at the same time they wish to participate in the inner life of the family. So too in the case of friendship. There is a desire both for privacy and for participation. Life at work and the daily life of a neighbourhood draw further lines between the desire of the individual for privacy and the same person’s desire to participate in opportunities which community with others offers. This dual interest occurs also at a more general, overarching social level. New methods of communications interception (“bugging”, tapping of public lines etc.), video and even satellite surveillance allow insight and an entry into personal matters, but they can be also be used to satisfy people’s need for protection, safety and security in public places. Genetic research has provided insight into the individual’s genetic material in a way which was previously impossible, thereby allowing new possibilities for the diagnosis and treatment of hereditary illnesses. Individuals have an interest in non-interference but also an interest in profiting from the results, which such interference can give. A theory about respect for the individual’s right to a private sphere and its protection ought therefore to incorporate both these interests. One could, indeed, define respect for privacy as a respect for the individual’s own private space and those matters concerning the individual which can be looked upon as being private and personal in character, in keeping with the non-interference perspective. In weighing up the ethical and legal pros and cons, we have to balance this interest against other interests, namely of family, friends, colleagues, neighbours and ultimately that of society as a whole. Such an approach, however, involves what would appear to be an erroneous assumption about certain irreconcilabilities: the individual as opposed to others; private as opposed to public and so forth. In fact, the individual wishes simultaneously to enjoy a private sphere protected from insight but also to participate, both to be left in peace and to be a member of a family, a friend, colleague, neighbour and member of society. In the present work, I shall propose an alternative approach which differs from that which is currently dominant. I shall start with the assumption that the individual wishes both to enjoy privacy and equally to be able to participate. According to this way of looking at things, individuals find themselves constantly torn between these fundamental interests. They are interests, which every social organism possesses to some extent, even if individual and cultural variations can be considerable.

Four Literary Contributions as an Introduction to Understanding the Concept of Integrity

3

All social organisms have a basic interest in finding their own role in a socially complex context in terms of collaboration, tolerance or competition. In practice their private and public spheres are interwoven to form a complex, social tapestry. However, each individual wishes to exert influence on where and how the distinction is to be made between the private and the public spheres. In this book I shall suggest that an emotional territory, which forms the individual’s own sphere of action and experience, has developed in the course of evolution in pace with the changes in the individual’s conditions of life, brought about by challenges in the natural and social environment. This emotional territory allows a readiness to act along different lines and to maintain a multiplicity of different social relations. In order to capture the fundamental notion of agency involved in an individual’s efforts to expand, defend and, sometimes, give up the private sphere I shall use the term integrity. Respect for integrity focuses on the agency of an individual trying to relate the private sphere to an active participation in social and public life. My starting point is the insight that the behaviour of human beings with respect to their privacy and integrity reflects in fundamental way patterns of behaviour among social animals. Furthermore, this pattern has been established at an early point of evolutionary history. In comparison with integrity I regard privacy as a narrower concept where the emphasis is laid on the protection of the private sphere, without acknowledging the double interest of seclusion and participation. Respect for integrity, in my view, includes respect for privacy. The traditional view of privacy is expanded through an emphasis on the role of the agent in the private sphere and that agent’s strivings to be socially recognised. I will still use and discuss the concept privacy, primarily in the chapters dealing with the legal and the moral philosophical discussion of the interests related to our private spheres.

Four Literary Contributions as an Introduction to Understanding the Concept of Integrity Without laying claim to a deeper textual analysis, I would like to begin by developing the meaning of the concept of integrity by citing four literary works. In slightly different ways, they succeed in capturing important aspects of the meaning of the concept and remind us of certain central features of human life. They are intended to give a hint, both about the central importance of the concept and the rich variation, which occurs in interpreting it. Starting with two excerpts from the Finnish writer Juhani Aho followed by a poem of the Swedish poet and author Carl-Erik af Geijerstam we end with the description of an experience by the Swedish writer, Sven Barthel who is well known for his works about the Stockholm archipelago.

Juhani Aho Certainly one is still allowed, thank God, to hunt rather freely in the deserted areas of Finland. But that is not the same as to hunt in woods where I alone have the right to do so.

4

Introduction For it is precisely in this that the pleasure lies. I believe that there is in the very blood of those of us who are hunters, an inheritance from our forefathers, which made them enjoy in solitude, so to speak in secret, creeping through the forest with their dog early in the morning when everyone was still fast asleep. Moreover they were very concerned to ensure that no one else would force their way into their area. Even today, there is nothing likely to anger an old hunter so much as the bark of a strange dog or a shot from another gun. And this is not simply envy, born of the pursuit of quarry, so that he thinks: now another person has shot the game which I just as well could have bagged: I know that from my own experience. The cause is something deeper. It is the atmosphere, this feeling of solitude and secretiveness, which attracted us and which we set out to enjoy, which is destroyed. Here I go, all by myself, in the empty countryside – this is what I think when I go on my lonely wanderings in the silent forest. No one knows where I am; I am completely cut off from the rest of the world, alone with nature in all its might, in order to find out its secrets, and tease out its qualities. And my dog is nowhere to be seen – he is on the hunt after something and no sound can be heard from him – now I hear his bark. It is a queer feeling. . . But then suddenly another man’s dog rushes past me and barks; there is the report of another man’s rifle. . . . Farewell to the atmosphere. The magic is gone and I hurry home as though ashamed of something. But if I had had my own hunting grounds, this would not have happened: I would not then have needed to fear being disturbed. That is the real cause. (From Aho, Juhani, Fridlysta jaktmarker, in the collection Hafvet i lugn. Spånor V. Authorized translation from Finnish to Swedish of Ellen Snellman, published by Björck and Börjesson, Stockholm, printed in Helsingfors 1912. AB Lilius and Hertzberg, pp. 71–72).

Even those who have not had personal experience of living in the wild, recognize the need for seclusion, to be able to be on one’s own without others’ insight and knowledge. This is expressed in different ways in different times and cultures, but somewhere there is the desire to retire to one’s own world, free from others’ insight. At least, there must a possibility of doing so. In many similar scenes from Finnish Karelia, Juhani Aho has described the human search for seclusion from the rest of the world. It is not simply a question of having the resources to survive and reproduce. Whoever has learned in the course of many wanderings in the forest where the paths lead, has followed the trail to the fox’s lair, has crept in on the blackcock’s ‘lekking’ behaviour, and witnessed how the boreal owl flits swiftly between the tops of the trees at dusk, experiences a deep sense of belonging and peace. This is a feeling, which fits in well with the joy of arriving home with game from the forest. There is a feeling of presence and belonging in the solitude and seclusion. A feeling, which is destroyed when an intruder appears on the scene. The secret attraction of having a hunting territory of his own is also rooted in the hunter’s own mind and attitude. When a stranger suddenly appears, the mood is broken, and ashamed for having been exposed and having his innermost self held up to another’s close gaze, the hunter returns home as though his own inner territory has been threatened. In “Vildmarkens hämnd”, Aho describes the vulnerability of this inner territory. A skier has stopped in the middle of a mountain slope at an open spot where he can look over the forest landscape beneath, where marsh and lake, stream and sound, alternate with one another. At the foot of the mountain slope, he spies the roof of his hut between two stretches of water, gleaming in the sunlight.

Four Literary Contributions as an Introduction to Understanding the Concept of Integrity He is a hunter, the sole inhabitant of these lonely woods, which stretch as far as the eye can see from the top of this mountain. He has devoted himself to the area around these stretches of water because there was no one else who could take possession of it. No sign of a human foot has been seen since the year of the great war when some people fled westwards, while others were carried off forcibly to foreign lands. He drinks in the mild air and the fresh smells of the woods, gazing contentedly with a kindly expression from under the mop of hair, which covers his forehead. A sense of joy fills his being, a feeling that the reign of winter is coming to an end and that its iron grip has loosened. Not even this winter has brought what he had feared. Soon one will no longer be able to ski; soon the snowdrifts will begin to sink, and no hunter from the populated regions has shown up here. The unknown danger, which he had always anticipated, sensed, without knowing where it would come from, has remained far away. – May it come some time so that he could be quit of it! – But he always felt pleased about Spring when its presence had been delayed during winter. In the summertime, people would no longer be able to find their way here [. . .] The log cabin there on the bank of the rapids is now already full of animal hides, the fruit of the winter’s hunting. Tomorrow he will load them onto a sledge and putting on his skis, he would drag it to the market. There, the merchants would revel in the skins and remark that you couldn’t buy any better, not even from the king’s huntsman himself. But where they came from, was a mystery. Ahra, they would say, was not a person to speak about his business or where he lived. He always led trackers and spies on false trails, and brought his goods to market without leaving a trail behind him. . . He is just in the process of setting out when he hears a bark. The bark of an angry dog reaches him from the foot of the mountain. Alarmed he gives a start, because this is not the usual cry of a dog, neither the lively but at the same time peaceful sound when he barks at a squirrel on a tree, nor the forced and eager call of a dog in pursuit of fleeing quarry. Because now one can hear that it concerns some large animal which the dog hates and fears simultaneously, and dares not attack, because this call sounds more cautious, uncertain, but at the same time, angry. Ahra whistles to the dog whose bark has turned into a howl “A wolf!” – he guesses and skis down the steep slope. “Yes, a wolf!” he inwardly decides with still greater certainty, when the dog with his tail between his legs comes towards him halfway up the mountain slope. The gleam in the man’s eye darkens; the contented smile on his lips disappears. He bends his strongly muscled frame and his face takes on an expression of tense curiosity while he spurs himself on anew to hunt his quarry [. . .] Ahra skis on, failing to stop at the place where the dog turned in among the trees, but at the same moment he goes over the track, he suddenly notices that it is not the track of a wolf, but of skis. He immediately stops, hops down in the snow and stands a good while with the snowdrift up to his knees, stunned as if lightning had flashed before his eyes. Then he slowly gets up on his skis and approaches the alien ski track, bent and sly. Yes, these are genuine tracks of skis. They belong to someone who has come from the direction of the lake, skied up here to the wood and somewhat further on has approached the shore in the direction of Ahra’s hut. Where has this skier come from? Where is he heading? Who is he? [At this point there is a long hunt in which Ahra follows the track left by the skis of the intruder – apparently a Lapp to judge from the trail left behind – in twists and turns, over lakes and mountains. When it gets dark, the intruder gives himself away by lighting a fire on an islet in a mountain lake] Ahra took a hold of his spear, mounted his skis and glided forward towards the fire. The Lapp was sleeping close to the log fire and did not notice the approach of his ambusher. Already on the shore of the islet, Ahra had taken off his skis and now crept with hunched back ever closer.

5

6

Introduction The person asleep was a young boy in a peski edged in red. He reclined on his back at the foot of a fir tree, quiet and secure, with his hands under his head, while the light of the log fire lit up his childish, innocent features [. . .] The point of the spear poised for immediate attack, was already lowered, and Ahra took a step back so as not to be observed. Suddenly a twig snapped under his foot, the sleeping boy woke up, sat up with a quick movement and rubbed the sleep from his eyes. At the same moment, Ahra raised his spear and thrust it so violently into the boy’s chest that the weapon passed through his body and transfixed the young man to the spot where he was lying [. . .] But when Ahra wanted to withdraw his spear which had been thrust deep into the earth, he began to feel a quiver run first through his body, then his hands, and then in the spear itself and the victim’s body, a fit of shivering which was so violent and uncontrollable as though it wished to strip the clothes from his body. He was unable to tear free his hands from the shaft of the spear; the more he tried, the more violently they shook, and he felt himself shaken ever more wildly, as if bewitched [. . .] Ahra skied home without ski sticks following his previous track. But not even in his home was he released from the curse of the dead. Whatever weapon or tool he took up, be it spear, ski stick, bow, axe, steering-oar or trident, he was gripped by the selfsame terrible shaking. Thus he was forced to leave the wilderness, so dear to him, and go to places where people lived. He was compelled to abandon his hut and his shed, which raised itself on piles close to the rapids; to leave the game, the forest and glades and all his store of materials, that paradise he had owned, to someone who, once upon a time, had chanced to find his way there in order to build a dwelling and take hold of everything. When Ahra came to new pastures, strangers put a pick and spade in the hands of this former free and daring hunter from the wilds. These tools stayed firmly in his hands; no shaking loosened them from him. The thoughts, which came and went in Ahra’s mind, were neither great nor deep. But it was clear to him that if he had not attacked Tapio’s son, he would not now be striking a pick into the stony earth. The wilderness had wreaked vengeance for its son and driven out the one who had broken its peace. (From Aho, Juhani, Vildmarkens hämnd, in the collection Spånor, Fourth Collection, Published by Albert Bonniers Förlag, Stockholm, printed in Tavstehus by AB Hämäläinens Press 1899, 212–234).

Ahro’s peace of mind was shattered, not through the intrusion which the stranger was guilty of, but through his own incapacity to protect seclusion as part of a greater participation. The protected place, the hut and store remained there, and the terrible deed would probably never have been discovered in these inaccessible places, but Ahra’s security and freedom were banished forever due to his fear and shame.

Carl-Erik af Geijerstam Being Observed I have been given binoculars as a present and from my window I can point them at the trees in the cemetery. You come in close to the naked tops of the trees and almost immediately I catch sight of the body of a bird which is sitting completely still and peaceful, pressed up against the trunk of a tree. It is a woodpecker with its beautiful white-red-black plumage. I would never have been able to see it with my naked eye and now

Four Literary Contributions as an Introduction to Understanding the Concept of Integrity

7

I can follow the smallest movement it makes. It is new and sensational, but simultaneously somehow indecent with this peering, these bulging eyes which peek among the secrets of the tree. What right have I to expose this bird to the close scrutiny of my gaze and my groping curiosity about its feathered dress? Not a turn of the head, or adjustment of its body escapes me. Should not all creatures, as something self-evident, have a special area where they can be left in peace from such all-seeing eyes? A place where they can disappear, vanish away to quiet non-existence. (From Geijerstam, Carl-Erik af, Strimmor av vanlighet, Författarförlaget, Uddevalla 1985, p. 51).

Perhaps animals, or at least those which have more socially complex patterns of life, have social needs for territory of their own, but these lines of Geijerstam underline the common experience of the search for anonymity and quietness, of finding a balance between seclusion and participation in social intercourse. To be left in peace from such all-seeing eyes and still be a participant in social life. It is a difficult balancing act, not least because human curiosity would seem to be as least as strong as people’s need to protect their integrity. Probably curiosity too has an evolutionary origin, in the sense that it is thus individuals learn new tricks and insights in the art of survival, not to mention also learning of others’ capers and mistakes.

Sven Barthel . . . Bugleweed is the Spring night’s word. Blueness is alive tonight, inhumanly alive but felt from the skin to the very core of one’s being. Thrusting ever closer and ever more vertiginously deep. A grape-blue satiation and a raw, bottomless suck. Something happens behind my head, which forces me to look there. It is the moon in the East, behind the pines, wet with gold, remorselessly climbing. A disquiet runs through my nerves, the agony of helplessness. The rock I am standing on, the forest, the water, give no support. Earth’s gravitational pull has loosened its grip. I am losing my centre of gravity. The blue night has taken its prey. I still have the door to shut behind me, the blind to pull down, to seek sleep. A light sleep, a nerve-torn numbness which slowly deepens towards morning, sinks into a stream of unattainably fleeing dreams dissolving one’s identity. A drowsiness, which is heavy to lift oneself out of. And when I am awake much later in the morning and pull up the blind, there is a trace of rain on the window. When I step out on the hillside, it hits me. It is not a rain, which is a substitute for snow; it is the first rain of the summer season. A soft, gentle spray, at the moment abating and disappearing with showers that are thinning out. The last drops glitter in the sun, which has broken through. A starling is sitting in the tall poplar. Gleaming like metal, it tramps, shakes its wings, makes a clicking sound and pipes in a harsh discordant voice, with a sudden transition into mature rejoicing. Down on the jetty, on the furthest pile of the bridge, there sits a male wagtail. He says nothing, simply peeps. And then he launches himself, weaving through the air to the stony shore, where new seaweed is lying, already spread out, shimmering. I see it with exaggerated clearness; I see the hazel blossom gleaming in gold at the edge of the wood. I take some steps and see the colt’s foot, which was still closed yesterday, shining at the edge of the ditch. I see – at least I believe that it is I who see. I scarcely know.

8

Introduction I stand here helplessly surprised by my senses, dizzy, upset, deprived of my integrity. Irresistibly opened by the breath of Spring, by the softness of the air and the gleam of the sea, of the pungent smell of the earth delivered from the frost. The vapours of the earth are released like some primal discharge. It surges inside me, seasoning my blood, rank and acid and sweet, caressingly raw, ruttish. I move about in the countryside and I am still a human being, still conscious, but my consciousness is powerless. I am seduced and I know it: now the only to do is to comply, in sweet despair. (From Barthel, Sven, Skärgård, 1952. Printed in Strandhugg by Sven Barthel with illustrations/photographs of Roland Svensson, Bokförlaget Max Ström, Stockholm 2000, pp. 47–48).

Barthel’s text is the most politically explosive of the texts I have chosen. It certainly recalls the human search for a greater unity and balance in the context of nature, which we find described in research into views of life. We do not need to be sailors or lovers of the archipelago to recognize the emotional reaction. The Norwegian ecosophical movement of the 1970s, represented by thinkers such as Arne Naess, speak in similar tones (Naess 1974). The insight about the need in certain situations to surrender our privacy reminds us also of Hegel’s political philosophy and his concept of Aufhebung. By the sublation of the contrary relationship between themselves and the Other, individuals are able to achieve social recognition and respect. Integrity has two aspects. The desire for seclusion, but also the need to surrender our protected zone – our private sphere – in order to participate in something greater. It is only when we as individuals can sublate the contrary relationship between ourselves and the Other that we ourselves can become part of a larger community.

The Private Sphere from a Historical and Cultural Perspective Let me now briefly sketch the various chapters of the book. The view that the individual has a dual desire both to be left alone in peace and simultaneously to participate emerges clearly in the historical account presented in Chapter 1 of the views of private life which were held at different times and places and in various cultures. The picture of the private and the public is presented as a complex social web. The attempts by human beings to create a sphere of their own, has taken place simultaneously with the search for participation in a larger social context. The search for seclusion has gone hand in hand with the struggle for social recognition in a more or less socially complex world. Individuals wish to protect their freedom, but it is a freedom, which seems empty and devoid of meaning if it cannot be attained in a social context. The decisive struggle has been about the freedom to decide for ourselves where the line should be drawn between what is the individual’s own private sphere and the spheres of community and participation which form part of our life as social beings: to take part in a community on our own terms, and at the same time be socially recognized and respected.

The Private Sphere as an Emotional Territory – A Psychological and Evolutionary Perspective

9

The Private Sphere as an Emotional Territory – A Psychological and Evolutionary Perspective The concept of the private sphere is related to the individual’s status as a psychological and social being. In dynamic interaction with the world around, the individual’s self image is influenced as well as the surrounding world’s view of the individual. Individuals are affected emotionally by things, which happen in their surroundings and react with different kinds of behaviour. Someone steals a bicycle. Someone makes a fool of parents or a close friend. Someone criticizes a party or church to which they belong. Suddenly we become aware that someone is looking at us from a distance through a pair of binoculars. A journalist describes the details of our pension scheme and the family’s personal financial affairs. Someone becomes a little too intimate in everyday conversation and the other person takes a step back. A physician writes to a person and says that he has genetic information about them. We find ourselves acting emotionally. A whole series of purely physiological processes are set in motion. Our pulse increases, as does the activity of our sweat glands and we blush. The boundaries defining the private sphere vary from individual to individual. Some of this is probably genetically conditioned, but it also depends on upbringing, learning and the influence of culture. All individuals with a basic capacity for social relations develop a larger or smaller sphere, where things that happen, have a pronounced concern and influence upon themselves. In this way, all social beings can be considered to possess a self, which is able to interact with its surroundings, and which makes its presence known via various types of emotional reaction. An entry into this sphere need not necessarily mean a violation. Anyone who has made great efforts to attract the attention of a potential male or female partner responds with feelings of joy rather than disgust, if the object of their attention suddenly reacts with reciprocal curiosity. In considering the emotional reactions, which would seem to be linked to various kinds of entry into the individual’s private sphere, it is reasonable to begin our conceptual investigation by examining the psychological aspects of integrity concerns. I propose that we look upon integrity psychologically speaking as an emotional territory which all individuals dispose over and which they seek to expand, defend and in certain situations are prepared to partially surrender. In Chapter 2, taking as my starting point various studies of emotions, I shall describe integrity as just such an emotional territory. By starting with emotions, which play a primary role in the relation of individuals to their surrounding and their communication with it, we acquire a concept of integrity, which is applicable to both human beings and animals. There is a conceptual continuity between the various animals – including human beings – which live in societies, even if the variation between the various individuals can be extremely large, above all due to differences in the natural and social environment with which the individuals have to relate. In Chapter 3, I shall try to answer the following fundamental questions: what is integrity? Why do individuals seek to protect their private sphere? And how can we explain the variations in reactions of different individuals to the violation of their private sphere?

10

Introduction

If integrity is something possessed by animals adapted to social life, evolutionary biology ought to be in a position to give us part of the explanation for this phenomenon. Such an explanation turns out to be not so farfetched, and can allow us to understand the individual variations which are conditioned by the various challenges which different individuals have to meet in their environment and social surroundings. By defining integrity as an emotional territory, an alternative view to the dominant perspective based in non-interference of privacy emerges. The emotional territory is primarily a result of and an instrument for communicating with the surrounding natural and social environment. This emotional territory has been shaped under a long period of evolutionary history, as a result of individuals’ attempts to master the challenges which arise in a partly hostile environment in order to win advantages for themselves in competition with others, but also to be able to develop various forms of social co-operation and to enjoy the fruits which participation with others offer. The emotional territory answers to a need to relate, in various ways, to various individuals, thereby maintaining various kinds of social relationship. Integrity, psychologically considered, has primarily a social function. It originates, not from a purely negative interest in being left in peace, but in a dual interest in both being allowed to live in seclusion and, at the same time, to participate. If we start from a definition of integrity as an emotional territory of a rather stable character, it is tempting to look upon it as a property of individuals. This property can be expected to have certain advantages for survival, as a part of the individual’s social mechanisms. A certain stability in the individual’s response pattern facilitates social co-operation between various individuals and enables the group to deal collectively with different challenges. The way in which animal and human beings play, offers potentially interesting behavioural patterns for study, bearing in mind the notion of integrity as an individual quality where individuals seek their own roles in interplay with others. In play, certain social rules and conventions are followed, and it is expected of individuals taking part in the game, that they know the difference between playing and acting seriously. Through various emotional reactions, it is possible for those participating in the game to determine if someone goes beyond the accepted boundary. The game seems to give rise to a form of social expectation with regard to the individual. This expectation presupposes partly that individuals can interpret the emotions and behaviour of other individuals, and partly that the latter behave in a somewhat predictable way. Individuals, who go beyond the boundary between play and real, ‘no-pretending’ behaviour, are often subject to some form of sanction. The game is an exercise in drawing boundaries, where the individual’s integrity is formed through interaction with other individuals. By means of the game, individuals acquire an understanding of their own property of integrity but simultaneously they learn to respect the integrity and the private spheres of others. By a swift submissive reaction to the wronged player’s aggressive reaction, individuals show an insight that they have gone too far. A social expectation arises through social relations, and the expanded possibilities of predicting a response from the others involved can very well give evolutionary advantages, which results in socially more advanced groups winning. It is also

Integrity as Something Which is Morally Worth Protecting

11

possible to think that this social expectation creates a feeling for what constitutes a reasonable and just response from the other party, an idea which Marc Bekoff has developed, and which is presented in more detail in Chapter 3. Bekoff has analysed the significance of play in various animal species, for the development of such an expectation and feeling for what is socially appropriate behaviour. The realization that one’s opposite number – in Hegelian terms, the Other – is acting according to social convention or etiquette gives a feeling of being socially recognized. The Other has felt respect for one’s integrity. If we start with the proposed definition of integrity as an emotional territory, we then have the possibility of explaining what the concept of “moral integrity” might mean. It is then a quality associated with individuals, corresponding to the social expectation, which is established and becomes evolutionally significant in a group of individuals. The moral integrity, which is associated with persons who abide by their word and do not accept bribes, as far as its psychological basis is concerned, can be thought to be related to the qualities, which are to be found in individuals with quite different mental and social requirements in the course of evolution. The behaviour of individuals possessing that quality of character called moral integrity corresponds to the social expectation, which is established in a culture. Moral integrity could thereby be looked upon as a basic psychological quality which gradually with the help of increasingly more advanced cognitive capabilities in individuals, and later in development, with the help of social conventions, ideology and moral views has come to represent a complex property, which is socially sufficiently well-founded to serve as a guide in complex social relations. I shall return to the question of moral integrity in Chapters 3 and 7.

Integrity as Something Which is Morally Worth Protecting Integrity can be considered as something which has a special moral value, something which elicits from other individuals respect and consideration. In Chapter 3, I shall also discuss three alternative ways of describing integrity as something worthy of moral protection. In the case of animal integrity, some people have advocated a teleological approach where one supposes that every species incorporates a sense of purposiveness, which is particularly worthy of protection. An alternative to this is to focus attention on the individual’s own experiences in analogy to how respect and moral consideration have been linked to the individual’s capacity to feel pain or experience happiness. This alternative is more in keeping with my own approach, which takes as its starting point the notion of integrity as an emotional territory. A third alternative focuses on the individual’s capacity to act as a morally important quality and therefore particularly worthy of protection. It is inter alia in the Kantian moral tradition that emphasis has been laid on respect for the individual as agent, but with the focus confined to human beings. Morality regulates the intercourse between different individuals and groups. In the history of human kind, a number of moral principles have emerged to guide the social interaction between human beings and to deal with various conflicts of interest. According to the Kantian moral tradition,

12

Introduction

the members of a moral community impose upon themselves a basic requirement in their thought and actions to refrain from whatever is based on violence, compulsion or deception. This presupposes on the part of individuals a capacity to impose on themselves this kind of basic requirement. In so doing, we find a break in continuity between human kind and other animals, even although the latter can share many capacities and the intrinsic experience of a violation of integrity, as regards its basic components, follows universal psychological principles.

Respect for the Individual as a Person with Moral and Political Authority – Integrity from a Philosophical Perspective The occurrence of integrity as a property in the individual elicits attention and moral consideration. Confronted with someone else’s private sphere, one halts, irrespective of the species or group to which this individual belongs. There is also a common link between all social beings as regards moral integrity. Integrity as a more developed moral concept, however, forms part of a rational project where one attempts with rational principles to find an explanation of its significance. With the support of Kantian ethics, I develop in Chapter 4 the idea of respect for an individual’s integrity in terms of respect for human beings’ dignity as moral agents. The foundation stone of Kantian ethics is the postulate about the individual’s freedom to think and act in accordance with universally valid principles. Hegel shared in large measure the same view of the individual’s moral autonomy, but went one step further than Kant. Just as evolutionary psychologists have described how the development of various emotions can only be understood against the background of the individual’s attempts to deal with a hostile environment, so we may look upon Hegel’s approach, which is new relative to Kant, as a revolutionary change of perspective. For Hegel, human freedom and independence are continually under threat. Human life is a continual struggle for respect and social recognition. In the philosophical perspective on integrity, the book’s central idea of the individual’s dual interest in both living in secluded freedom and at the same time in participation with others is reiterated. Neither Kant nor Hegel makes use of the concept of integrity, but Hegel describes human ethical relations in various social contexts in a way, which his expositors have described as a theory of social recognition. One of these, Axel Honneth has described how the individual’s self-image is formed in a struggle for social recognition and it is in terms of social recognition that human integrity is respected. Honneth’s theory is not immune to criticism, but it gives us an important view of integrity as a moral and political concept. In more recent years, Honneth has sought inspiration in psychodynamic theories for his sociopsychological model in order to explain integrity, but he would probably have much to learn from evolutionary biology as well. The link to Hegel is, however, no longer feasible in my opinion. For Hegel, respect for integrity was a question of a moral and political project, which focuses on how society’s institutions ought to be organized within the framework of a constitutional state.

Integrity as a Quality Worthy of Esteem and Respect

13

Balancing Seclusion and Participation – Integrity from the Perspective of Moral Philosophy, Jurisprudence and the Law In a political context, respect for the individual’s right to a private sphere is considered fundamental, even if in certain situations, this right must be restricted to take into account the interests of other people. A person suspected on good grounds of being guilty of criminal activity must accept close scrutiny. In practice, protection of privacy and other interests have to be counterbalanced. In a number of countries, for example, one is restrictive in allowing telephone interception or the video surveillance of people in public spaces. On the other hand, one permits close scrutiny of people’s economic affairs and where they choose to have their principal place of residence. The regularly recurring population and housing censuses take place nowadays without arousing any great concern, although in the days of King David, they were viewed as a serious violation and a rebellion against God. Chapters 5 and 6 are devoted to an account and critical analysis of various moral philosophical, jurisprudential and legal conceptions of privacy where the main issue is to decide how to balance the protection of privacy against other interests. In my approach, integrity is given a wider meaning than the concept of privacy. To respect someone’s integrity does not simply mean that we halt, before entering a sphere that is personal and private. It also implies social recognition and a declaration of people’s moral and political authority in their striving to satisfy collectively the dual interest of seclusion and participation.

Integrity as a Quality Worthy of Esteem and Respect In English the concept of integrity is understood as a quality, which influences how individuals act in a social context and how others look upon them. The possession of integrity is looked upon as something worthy of respect: a quality of character, which elicits admiration and respect from others. In the English-speaking world, one has distinguished privacy as something that can be violated and integrity as a quality of character, which one can possess. Theories about the sanctity of private life and integrity as honourable and something worthy of respect thereby never meet. By contrast, if one accepts my theoretical approach, these two senses of what is at stake come together. By focusing on the agent of the private sphere there is a connection between the privacy which can be violated, and the integrity which is expressed in admirable behaviour, a thesis that I shall develop in Chapter 7. This connection can be exhibited by noting that in both cases it is a question of an individual or personal attribute with a strongly charged emotional background. In the concluding chapter, the insights gained in earlier chapters will be applied to the specific issues involving respect for individuals’ integrity, which arise in the case of genetic research and research making use of human biological material.

14

Introduction

The Relationship Between Privacy and Integrity As described in Chapter 5 and in Chapter 6 privacy and integrity are sometimes used as interchangeable concepts and sometimes without any clear definition at all. In my view privacy and integrity should be distinguished as two separate concepts rendering different meanings to “respect for privacy” and “respect for integrity”. With “privacy” I mean a condition where individuals enjoy a secluded sphere of their own. It can be a physical space that is isolated and free from insight or intrusion by others, or it can refer to certain information of a personal nature that is not accessible to others. “Respect for privacy” means then that one should not, without good reasons and only on certain conditions (e.g. consent or protection of other vital interests), enter into an individual’s private sphere. With “integrity” I mean a property of a social agent navigating the intersection of the private sphere and the public spheres. A social agent has an interest in enjoying a secret sphere that is barred to others but also to participate with others in a social life. The enjoyment of a private sphere enables the individual to engage in a complex social life with different kinds of relationships to other individuals and groups. “Respect for integrity” means a social recognition of the individual agent trying to master his/her relationship between the private and the social life. “Respect for integrity” is focused on the agent of a socialization process and I will show that the same concept is applicable to animals participating in social play as well as to human beings claiming recognition as moral and political citizens in modern societies. In the latter, more developed, instance the agent has won recognition as a person with insight into and the possibility of influencing the principles and rules which steer life in community with others, including how one should draw the line between the private and the public spheres in a society. I will suggest that evolution has equipped social beings with such a property that enables them to navigate between the private and the social. The basic element of this property is an emotional territory including an individual’s cognitive appraisal of different emotional reactions when facing environmental – natural and social – threats and challenges. Such a property is of great social significance and has an adaptive function in analogy to how other properties (e.g. being fast, tall, small, strong, courageous, sensitive, emphatic) are essential for seeking food, mating, escaping a prey bird or socializing. Implicit in the idea of an emotional territory is the recognition of the individual agent whose territory it is and who uses this territory as his/her sphere of action and social engagement.

Chapter 1

The Private Sphere from a Historical and Cultural Perspective

In legal discussions of human integrity, it is the protection of the sanctity of private life which is central (see Strömholm 1967, Westregård 2002). This is consistent with general linguistic usage. The private sphere is the one which other people have no right to infringe. When this occurs, it is looked upon under certain conditions as a violation of someone’s integrity (Collste 1997). Normally what is intended is the right of individuals to protection of their private sphere but at the same time the family is considered to have the right to protect itself against external insight. What is private is marked off from what is generally accessible to all, just as a private piece of land is marked off from a city park which is open to all. What is private is also distinguished from things which are the objects of public insight and the exercise of power. Under certain circumstances, the state has the right of access to private data relating to housing, financial matters and family relations. How far-reaching these rights are, varies from state to state. As Amitai Etzioni has pointed out, it is not only the state’s interest which is counter posed to that of individuals (Etzioni 1999). Private corporations such as insurance companies are sometimes given the right to have access to detailed information about individuals. Various forms of confidentiality laws have been designed to protect the private life of individuals and families from unwelcome intrusion. Respect for people’s privacy has been taken to mean that certain personal and sensitive information must be protected from public insight. As a legal concept respect for privacy is intended as a protection of what is or ought to be private and the personal matter of the individual concerned. The basic idea underlying both the legal discussion of privacy and general language usage is that what is private must be able to be fenced off from what is publicly available. A historical survey, however, shows that this view of what is private is highly simplistic. During different periods and in different cultures, what is private and what is public have been interwoven by the fact that individuals always exist and participate in a socially complex tapestry. What is private and what is publicly available has continuously altered in different social situations. The way the line has been drawn between them has been influenced by such things as architecture, town planning, economic conditions, religion and political ideologies. Even in one and the same society during a given period, the seclusion of the private sphere can be found to vary significantly, depending on the social status of individuals and their economic resources. In part, Western history has been an ideological and political M.G. Hansson, The Private Sphere,  C Springer 2008

15

16

1 The Private Sphere from a Historical and Cultural Perspective

struggle about counterbalancing the interests of society in general with the right to have a private sphere. The need for both seclusion and participation would seem to follow human beings wherever they live. In a five-volume work, Philippe Ariès and Georges Duby assisted by a large number of historians, have presented a history of private life from Roman times to the modern era (Ariès and Duby 1987–1991). The main emphasis is on European history, and much of the material covering the Middle Ages and the subsequent historical development, deals with France, Germany and England. The material which is collected in this monumental work on the private life of human beings in Western Europe is enormously rich. In the present context, there are two observations which it is especially important to note. The historical development of the concept of what is private has not been a continuous one (Thébert 1987, 320). Radical redefinitions of the concept take place for a host of social developmental reasons. This is linked to the insight that what ultimately is viewed as private is intimately bound up with the relationship that exists between public and private. The fundamental theory which emerges in reading the history of private life is that the private sphere has never been completely separate from that which is accessible to others. The private and public spheres are interwoven to form a complex, social tapestry. In all times, however, it has been considered important to define and defend a territory which is the preserve of individuals, if only in the form of freedom and independence of thought. This spiritual freedom has naturally been influenced by the currents of the time and cultural features which are shared and formed by many others. What can be considered as experiences of the violation of privacy varies greatly from one time to another, as well as between different cultures. Privacy is largely a social construction, even if a continuity exists between the emotional reactions to this form of violation and certain behavioural patterns which have been formed much earlier in evolutionary history. To support the thesis that the private and public spheres are interwoven, I shall give some examples relating to the individual’s place in family, home and society in Western history.

1.1 In the Supposed Seclusion of the Home The home is considered a protected zone for the individual and family, where the curiosity of outsiders can be excluded, and family matters can be dealt with in secret, secluded from the outer world. The individual’s opportunities to have a private life within the walls of the home are naturally limited and have varied widely throughout history. In Roman times, public assignments were a completely private affair. The Romans made no clear distinction between the public assignments of the rulers and their role as private individuals, nor between public revenues and personal wealth. Rome’s greatness was a collective asset for the ruling class and the group of affluent senators (Veyne 1987, 95ff.). Public assignments were looked upon as private sources of income obtained through private contacts. Paul Veyne compares ruling and influential people in the Roman Empire with a Mafia “Godfather”. One built

1.1 In the Supposed Seclusion of the Home

17

up a private fortune with the help of public assignments, and family ties determined how the power was exercised and distributed (ibid.). Ruling over a Roman province was akin to a private family business. A consul was expected to pay out of his own pocket for public, often expensive spectacles, such as chariot racing in the Circus Maximus and gladiatorial combat at the Coliseum. All of this was done to please Roman citizens. The aristocracy were then forced to despatch their officials to the provinces to replenish the state coffers. Living privately at home but charged with public assignments made demands on organization and architecture. The private home formed an important part of public life. The home was so organized that there was room both for a life in luxury which resulted from public assignments and the need to fulfil official duties. The aristocracy had a large number of rooms for different activities and the colonnade, so characteristic of the time, played a key role in separating the realm of public duty from more private affairs (Thébert 1987). It was here that subjects and delegations were received, while an ingenious system of corridors and vestibules were employed to convey visitors to the appointed place, depending how intimate their relations were with the family. “After passing through the main entrance, the visitor finds himself in the vestibule. This transitional space, although part of the house proper, is one in which the visitor is still subject to scrutiny. His view of the house is limited, and the vestibule is under the watchful eye of the guard. . .” (ibid., 355). The same need for transitional rooms leading from the public sphere to the private sphere is to be found in the architecture of later ages, although the form it took varied depending on economic possibilities and the extent to which those at home used it for public duties or services for others. The home became increasingly independent of public facilities. The famous Roman baths were public establishments to which both high and low had recourse, to attend to their personal hygiene. Arising first in the ranks of the aristocracy, this function was later incorporated in private homes. The possibilities for seclusion have in all ages been influenced by the family’s economic circumstances. Charles de la Roncière has described the renaissance architecture of Florence, when those with sufficient wealth built magnificent urban palaces, completely separated from the street by powerful doors and windows which were placed high on the facade to prevent people peeping in (Roncière 1988, 176ff.). Within the walls, there were beautiful gardens and an abundance of rooms for different needs. In the homes of the poor, one room sufficed for everything, while the more affluent were able to extend the room with an additional one. The principal room was used as a kitchen and living room, while the chamber behind it served as a bedroom. In the chamber were kept the most valuable family possessions and documents (ibid., 217). It was here that the secrets of the family and its forebears could be preserved. Economic circumstances have played a major role throughout history in determining the form of private life. Michelle Perrot has described the living conditions of the urban poor from the mid-1800s to the beginning of the 20th century (Perrot 1990, 349ff.). Crammed together in dirty, overcrowded hovels, where there was no room for any personal secrets, people developed their private lives by taking over the neighbourhood streets in a variety of ways. Forced to live a

18

1 The Private Sphere from a Historical and Cultural Perspective

major part of their lives in the street, the workers commandeered semi-private areas of the neighbourhood for their activities, and made use of the public establishments which existed. The alleys became the preserve of different groups, and private affairs were settled there. People helped one another and showed newcomers how to find their feet in the urban culture. It was one where the family’s possibilities of protecting the privacy of its individual members was severely limited for reasons of space. There were many whose private lives were shaped by such conditions. Antoine Prost relates that in 1894, 20% of the population in the town of Saint-Etienne, 19% of the population of Nantes and 16% of the population of Lille, Angers and Limoges lived in one-room flats (Prost 1991, 53). Jean Guéhenno’s description of life there is typical. “We had only one room. There we worked, ate, and on some nights even entertained friends. Along the walls we had to find space for two beds, a table, two armoires, a buffet, and a gas stove, as well as room to hang pots, photos of the family and pictures of the czar and the president of the Republic . . . Lines stretching from one corner of the room to the other always held the most recent laundry . . . . Beneath [a high window] we installed the ‘workshop’, my mother’s sewing machine, my father’s bench, and a large bucket of water in which arches and soles were always kept soaking” (ibid., 54). It was not only the family members who had to agree about this area. The home was visited by people wanting to have their shoes repaired. This description illustrates nevertheless a relatively spacious and modern working class home, when judged by the norms of the time. Many had significantly fewer possibilities for rest, socialization and a life of their own. To have one’s own home as workplace can seem to be a modern luxury. At the beginning of the industrial age, it was not however something that was voluntarily chosen but a necessity in order to survive under poor material conditions. It meant that the tradesman’s customers, as well as his family, were part of the domestic scene. Prost estimates that more than half, and up to as much as two thirds, of the French working population worked at home in 1900 (ibid., 9). Either one was self-employed or took work home to carry out for one’s employer. Both men and women worked at home with weaving, the making of clothes, shoes and gloves as well as the production of spectacles and jewellery on behalf of some manufacturer. Sometimes the manufacturer would deliver the material or semi-manufactured goods to the tradesmen, and payment for the work carried out was paid by piece, as the work was completed. Since the work was carried out at home, the home became inevitably open to the comings and goings of outsiders. The seamstress had to receive her customers and the weaver had to open his doors to the manufacturer and his agents. The combined homeworkplace environment on occasions became the scene of conflict. One witness tells of parents who made shoes from lasts they bought by the dozen (ibid., 13). During a strike in the shoe industry, the father’s savings ran out and he went off to get a hold of lasts with which to make shoes. When the workers on strike learned of this, they forced their way into his home and accused him of strikebreaking. Public conflicts took place in private rooms. Eventually social development and town planning brought about the growth of special industrial areas,

1.1 In the Supposed Seclusion of the Home

19

and the development of wage labour entailed that working life became separated from the home. In the countryside, the home had always served as a workplace, and the poor family often shared one and the same room as kitchen and bedroom. The rural conditions for private life were shared by many. In France, 69% of the population lived in the countryside in 1872. In 1911, the figure was 55.5%. Those who grew up on a farm at the beginning of the 20th century will recognize the picture which Perrot draws of the French countryside during this period (ibid., 347–348). The home was of a robust, but simple, construction and often overcrowded. In it, were to be found both human beings and animals, while all sorts of activities which formed part of the work on the farm, were carried out in the room which served simultaneously as kitchen, living room and bedroom. Every person found themselves exposed to everyone else. To conceal a pregnancy or even more a birth required considerable ingenuity and the co-operation of other women in the village. The barn, the ditch which surrounded the nearby fields or a patch of woodland became meeting places for love-trysts or the personal care of one’s own body (ibid., 348). Roger-Henri Guerrand quotes the lively description by the engineer Victor Considérant of his travels in the poor parts of rural France. “You find rooms that serve as kitchen, dining room, and bedroom for the whole family: father, mother, and children. They also serve as cellar and attic and sometimes as stable and barnyard as well. Light is admitted through low, narrow openings. Drafts enter by way of ill-fitting doors and windows. The wind whistles through blackened, broken panes – if there are panes, for there exist whole provinces in which glass is virtually unknown. Occasionally a smoky oil lamp is used for light, but usually the only light comes from the fire. The floor is of rough, damp earth, with puddles here and there. One steps in them. And young children wade in the mud. I myself have seen ducks scour these puddles for food” (Guerrand 1990, 386–387). Preserving one’s private sphere under such living conditions was no easy task. The better-off, both in the countryside and the towns, had more space to move about in at home, and possessed more rooms which could be used for different purposes. But also in these homes, other people besides the family’s own members formed part of the scene. The servants of the house sometimes assisted with the personal hygiene of master and mistress, and were well informed about most of what went on inside the family. They saw and heard everything, but had an obvious duty to say nothing about what went on in the home to outsiders. There was scarcely room for any private life on the part of the servants. A domestic servant was normally unmarried, and was assumed to live without a lover, husband or child (Perrot 1990, 232ff.). Those among the rich who had the means, could also retain the services of a family physician who dogged the footsteps of the family, and carefully attended to the intimate circumstances relating to the health of family members. Medical knowledge hastened the development which allowed, even among the working class, greater scope for the individual in the bosom of the family. The French cholera epidemic of 1832 clearly illustrated the injurious effects of crammed housing, where several family members shared both rooms and beds (Corbin 1990, 479–480). Stimulated by Lavoisier’s new medical discoveries about breathing and

20

1 The Private Sphere from a Historical and Cultural Perspective

the utility of a good supply of oxygen, the doctors declared war on overcrowded housing and gradually there was a trend towards the goal of one bed per person. A side effect of this was to enable individuals to be increasingly their own masters, and thus preserve their own private lives within the confines of the home. The bonds of marriage, family and kinship hold together the individual’s private sphere, but the ties of friendship and the relationships which members of the family are able to form outside the family, are important for their private lives. Throughout the whole of Western history, since Roman times, the opportunities for such relations have been unequally distributed between the sexes. Men have wielded power in the home. The opportunity to expand private life by cultivating relations outside the home has, for long periods, been reserved for men. The large European households of the Middle Ages were steered firmly by the master of the house. Legally speaking, the household, according to a definition of 1282, constituted his “own maisnie residing in his house (ostel), that is, composed of those who perform his private tasks at his expense” (Duby 1988, 63). It was the master of the house who provided those who lived there, with food and protection from intruders. This then gave him the right, when necessary, to administer various forms of punishment. The master of the house kept those under him alive, and thus ruled the house in accordance with his own desires. Georges Duby compares his role with that of an abbot in a monastery who was responsible for the material and spiritual needs of the monks (ibid., 68). The image of a single man in charge was based on contemporary theological symbolism with God the Father as sole ruler in heaven. The role of women was similarly inspired by the biblical stories. Woman was the weaker sex, and was seen as a threat to the patriarchal order in the home because of her sinfulness. The first duty of the master of the house was therefore to keep the women folk of the household in order, and carefully watch over wife, sisters, daughters and widows who made it up. The so-called chambre des dames was not, according to Duby, as one might be led to believe, a place for womanly distraction and seduction, but a form of prison where women were in captivity, because men feared them (ibid., 77). In the Middle Ages, and in certain circles up to modern times, the family was seen as a reflection of the Holy Family. The family formed the corner stone of the spiritual development of Christian society. The moral sermons of the Church were but vanity, if Christian families did not prepare the earth so that the seeds of this teaching took proper root in human souls. Charles de La Roncière describes the family during the period from the fourteenth to seventeenth centuries, as the spring from which religious vocation and a life of piety would flow (Roncière 1988, 302ff.). One effect of this way of looking at things was that the guardians of spirituality also seized the right to control the life style of the family. Both Dominicans and Franciscans visited homes frequently to guide the members of the family and assist in their moral education. These church brethren often became close friends of the family, but contributed in practice to the church’s control of private life (ibid., 305). Christian theology’s influence on the private sphere, whether in drawing the line between private and public or as regards insight into private life, in the unequal distribution of opportunities with respect to the sexes in moving between the private and the public spheres, has been considerable. During certain periods, religious

1.1 In the Supposed Seclusion of the Home

21

representatives have introduced substantial programmes of reform, which to a large degree defined the social and private roles of men and women. The evangelical reform movement within the Anglican church at the end of the 18th century and the beginning of the 19th century is an obvious example of a strict gender division between the home and the outside world, which exerted influence on social life for a long time thereafter. Catherine Hall draws attention to the evangelical writer Hannah More who was particularly influential in advocating Christian family ethics which assigned clear and different roles to men and women (Hall 1990, 55ff.). In tracts and pamphlets, her message to the poor was that they should submit to authorities, and cultivate their spiritual life in preparation for the heavenly joy to come. Her most popular books were aimed, however, at the middle classes. The novel Coelebs in Search of a Wife which was published in 1807, was much read in families of shopkeepers, merchants, lawyers and doctors. It was also such families which formed the backbone of evangelical congregations. A recurring theme of her writings was the view of man as a person responsible for public duties, while woman was responsible for the spiritual and moral education of the family. Hannah More’s spiritual outlook played an important role in moulding middle-class homes, and in framing the rules of private life in 19th century England. “The religious commitment to establish a new way of life that would make possible a constant attention to spiritual experience and which demanded a religious household had found material form in the gradual separation and demarcation of men’s and women’s work” (ibid., 73–74). Men devoted themselves to the unceasing, new challenges in the expanding world of business and trade. They increasingly identified themselves in terms of their professional roles and public duties. Women withdrew from this world to take upon themselves the role of mother who was responsible for the concerns of the home. Manliness was defined by the male’s capacity to provide for his family. Womanliness in his wife and daughters was based on their roles as dependent individuals with needs. A religious way of thought had a decisive influence on the various opportunities available to members of the family to move between the private and public spheres. The independence and freedom of action associated with the private sphere was reserved for men, a fact which was also reflected in legislation. Married women had no legal right to make a contract, to sue someone or be sued, or to enter into any form of partnership. Their married status implied that, in the eyes of the law, they were the man’s responsibility. They had no independent legal status (ibid., 67). The possibilities for insight into the internal affairs of the family are strongly influenced by various ties of kinship and by how the members of the family relate to one another, and by whether they live together. Several generations often shared the living quarters of the private household, but if economic circumstances permitted, efforts were made to give adults their own rooms. In the countryside, the older generation retired to a cottage on their land and the new generation took over the farmhouse and the running of the farm. Throughout history, children have seldom had a right to a private life of their own, although ways were gradually discovered of how to preserve secrets, and maintain independence in their intercourse with other children. Marriage was always a family matter and the parents had great influence, particularly when considerable fortunes were at stake. To have a room of one’s own

22

1 The Private Sphere from a Historical and Cultural Perspective

which parents respect, is a very recent phenomenon, and has, indeed, not really entirely caught on, even in modern times. The power exercised by parents over their children has always been great. Antoine Prost mentions a French survey in a mass circulation newspaper in 1938, which revealed that 30% of the readership considered that it was the parents who should choose their children’s career, and prepare them for it from an early age (Prost 1991, 69). In recent times, the increase in the number of divorces and the building of new families where both children and parents gain new family ties has meant an increase in the number of individuals with insight into the private affairs of the family. Now possibilities for assisted reproduction also implies that the individual’s genetic and social family ties increase in number. According to Swedish legislation with regard to confidentiality, information about a person’s health is considered sensitive. New knowledge about genetic links has led to an increase in the circle of people who are affected by this type of information about individuals. With the help of family history and sometimes with a test to establish if a person is a bearer of a certain disposition, it is possible, for example, to identify individuals with an increased risk of cancer due to hereditary factors. Several genes for inherited forms of tumour have been localized and characterized. In many cases, it is a question of polygenic illnesses, where a mutation in a single gene is only responsible for a limited part of the risk of illness to which the individual is exposed. Other inherited dispositions, varying penetrance and several environmental factors influence the overall risk the individual runs. When a family member is identified as a genetic bearer the dynamic of the family is affected. Individuals who are not genetic bearers can sometimes experience what has been called “survivor’s guilt” (Hopwood 1997). A child’s identification with a parent can be affected when a genetic similarity or difference can be demonstrated (Grosfeld et al. 1997). Clinical experience shows that one branch of a family can accuse another branch of bringing “a bad inheritance” into the family. In a case study, Theresa Marteau (1996) described the complex reactions within a family when one of its members chooses to undergo a test, whereas other members would prefer not to know anything about the situation of the family. Croyle .et al. (1997) examines phenomena such as the stigmatization of a family as a “cancer family” or a “high risk family”.

1.2 What Will the Neighbours Say? The opportunities for individuals and families to maintain a private sphere within the confines of the home have fluctuated throughout Western history. Neighbours have always had a certain measure of insight and sometimes the boundaries between the household sphere and the surrounding neighbourhood have fluctuated. The Venetian Franciscan, Fra Paolina, expressed the social role of human beings in the words Fagli mestiere a vivere con molti (make it your concern to live together with many other people) (Roncière 1988, 157). This duty extended beyond the family and included neighbours as well. People who daily spent their lives in the company of

1.2 What Will the Neighbours Say?

23

others, shared also, according to Paolino, a special form of solidarity. People were expected to support one another, and family events such as marriages and births involved those living close by. There was very little that could be kept secret from the neighbours, and sometimes close friendships developed. Charles de la Roncière tells of the patrician Geri Spini in Florence, who treated his neighbour, the baker Cisti, as a friend after Cisti had offered him a glass of wine (ibid., 164). Neighbours were sometimes chosen as the godparents to a newborn child, and in this role were invited to enter the bosom of the family. “They could come and go and converse with servants or with the lady of the house without occasioning gossip among the neighbors. They were part of the family’s private life” (ibid.). Arlette Farge describes the neighbourhood in French cities of the 18th century as something more than just a particular part of the town (Farge 1989, 578ff.). It formed a society of its own within the city, with its own laws and rules, where each citizen was subject to the scrutiny of the others. The lieutenant-general of police and his subordinates, together with the priest and his deacons, were given the task of keeping an eye on people’s way of life. These officials were the guardians of the moral order. They were well informed and were asked for official help in various connections. The constable could turn to the priest to get information about a person living in the neighbourhood who was suspected of some impropriety and their services were used for various purposes. The police archives contain a great number of certificates concerning individuals with “unblemished ways of life”, issued by the parish priest. “The constables were the eyes and ears of the neighborhood, and the lieutenant general of police made sure that they did their job, that they went everywhere and knew everything. The slightest incident brought them running. Constables and informers kept them apprised of rumours and plots discussed in the streets, inns and cabarets and around the fountains” (ibid., 578–579). Protecting the family’s honour is a task which calls for discretion in a society where private life cannot be kept within the confines of the home. In the middle of the 18th century, there was a special legal instrument in France – the so called lettre de cachet (ibid., 588ff.) – to assist a family wishing to restore its honour, besmirched by one of its members. It was a special document issued by the King which could be used to examine and imprison a citizen without recourse to the courts, and thus outside the normal processes of public law. The aim was to maintain the moral order, while ensuring that family’s secrets were preserved. At the close of the 18th century, the system was increasingly criticized for its arbitrariness, and the question was raised whether it was the responsibility of the police to intervene and pass judgement in disputes between husband and wife, or between parents and children. The neighbourhood rules for families and individuals were determined by their economic opportunities and town planning. Antoine Prost cites Jean Paul Sartre’s lively description of the conditions of private life, during a meander through the poor quarter of Naples in the middle of the 20th century: “The ground floor of every building contains a host of tiny rooms that open directly onto the street, and each of these tiny rooms contains a family. . . In these rooms people sleep, eat and work their trades. But. . . people are drawn into the street. They go outside for reasons of thrift, so that they won’t have to light a lamp, or to enjoy the fresh air, and also,

24

1 The Private Sphere from a Historical and Cultural Perspective

I suspect, out of fellow feeling, a desire to rub shoulders with everyone else. They drag tables and chairs out into the street or leave them on the threshold, half outside, half inside, and in this intermediate environment they perform the principal acts of their lives. Since there is no longer any outside or inside and the street is an extension of their living quarters, they fill it with their private smells and objects, as well as with their history. . . Outside is organically linked to inside. . . Yesterday I saw a mother and father dining outdoors, while their baby slept in a crib next to the parents’ bed and an older daughter did her homework at another table by the light of a kerosene lantern. . . If a woman falls ill and stays in bed all day, it’s open knowledge and everyone can look in on her” (Prost 1991, 4–7). These people lived their lives on the threshold between the private and the public spheres, torn between seclusion and participation. Neighbours know about the lives of one another, but they also participated together in various forms of social activities. “Anyone willing to pay the price can enjoy the benefits of living in a neighbourhood: smiles, hellos, friendly greetings, an exchange of pleasantries – things that make a person feel alive, known, recognized, appreciated and respected” (ibid., 104). People round about know who you are, where you live and a great number of other things pertaining to your private sphere. Clothes have their own story to tell, and neighbours see what is everyday apparel and what is unusual. Family disputes make themselves known through open windows, and new purchases are immediately noted. Prost cites Pierre Mayol who relates that the other apartment occupants could be expected to put up with a bottle of wine bought from the local wine dealer for dinner on Sunday, but the first bottles of whisky which were drunk in his own neighbourhood of Croix-Rousse in Lyons had been bought in Carrefour, the retail chain, where the anonymity of a larger wine and spirit merchant’s establishment allowed the buyer to avoid being noticed (ibid., 106). The neighbourhood is a public place where no one can avoid exposing their private life. The shopkeeper, the baker and the butcher were the eyes and ears of the neighbourhood. The church was a place where one could observe one’s neighbours, noting how often they attended mass, took communion or the time taken by young girls at their confession. Women were specially watched over and “when their faces swelled and their hips took on a rounder look and then suddenly became slimmer again, tongues began to wag” (Perrot 1990, 228). For the men in French towns, there was always the neighbourhood café where they could exchange experiences with one another in relaxed conversation which provided both a certain distance to the home, and yet at the same time, an opportunity for airing more personal matters. At the outbreak of the Second World War, there were 500,000 cafés in France with a licence to sell alcoholic drink. This meant more than one “bistro” per hundred inhabitants. Even the smallest village had a café and in larger towns, there were innumerable such places. In Roubaix, for example, at the end of the 19th century, there was one café per fifty inhabitants (ibid., 108). In towns, the role of public watchdog, with the task of keeping an eye on what people got up to in private, was transferred from the police to the caretaker in the house, – invariably a woman – la concierge. She was feared by all because of her position, poised between the private and the public spheres, between the tenants and

1.3 Power Over Spiritual Life and Thought – Private Sphere from a Religious Perspective

25

the landlords and sometimes in close contact with the police, who turned to her to make use of her services as a spy (ibid.). The insight and influence of a caretaker in a Stockholm apartment block in the 1940s was not essentially different from this earlier French equivalent, although their task was mainly concerned with clearing away the snow, and deciding when the heating in the house was to be switched on or turned off. The large apartment blocks of the modern town provide a greater degree of anonymity and seclusion, but there is a lack of participation and that social recognition which a living neighbourhood can offer. Infiltration of the modern private sphere takes place in a more subtle way. New fashion trends, radio, television, internet and music reach beyond the closed doors of the apartment. It must be left to each and everyone to decide, according to their wishes, whether to switch off what is on offer, but in practice public life makes itself felt both in the private spheres of the living room and bedroom.

1.3 Power Over Spiritual Life and Thought – The Private Sphere from a Religious Perspective The study of the past shows that the family hearth and home have seldom been a zone which is protected from the outside world. Instead, there emerges a picture of the private and public as intimately intertwined spheres, both for good and ill. Individuals and families have tried to overcome material and spatial limitations in order to achieve seclusion and independence. In order to win respect, social recognition and friendship, some form of participation in social life is needed, and the veil around the private sphere must be pulled back. Different ideologies and systems of thought have influenced and shaped the lives and attitudes of individuals and families to the surrounding world. Individualism as an ideology and political programme is a relatively recent phenomenon, and first gained momentum in the 19th century. Throughout the whole of Western history we can, however, follow the individual’s struggle for spiritual independence and freedom of thought. Individuals themselves have not always experienced it as a struggle, but when we look at matters retrospectively from the outside, there are many people who have participated in the spiritual struggle, and have sought to control the inner life of human beings. Christianity has played a decisive role both in protecting, illuminating and shaping the inner spaces of the private sphere. As Michel Rouche has pointed out, Christianity emphasized the relations between God and the individual (Rouche 1987, 519). The evangelists describe it as the central thesis in their stories about the life and activities of Jesus. Criticizing the Pharisees and those well versed in the sacred texts, who according to the gospels devote far too much time to displaying their righteousness so that others can clearly see it, emphasis is placed on the hidden life of faith and the importance of examining our own hearts. The Sermon on the Mount in St. Matthew’s Gospel lays great emphasis on the involvement of belief in a life hidden from other people. “Take heed that ye do not your alms before men, to be seen of them. . . . That thine alms may be

26

1 The Private Sphere from a Historical and Cultural Perspective

in secret; and thy Father which seeth in secret himself shall reward thee openly. . . And when thou prayest, thou shalt not be as the hypocrites are; for they love to pray standing in the synagogues and in the corner of the streets where they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly” (Matthew Chapter 5, verses 1–6). The Christian message initially focussed on human character and dispositions: “Ye have heard that it was said by them of old time, Thou shalt not kill; and whosoever shall kill shall be in danger of the judgement: but I say unto you, That whosoever is angry with his brother without a cause shall be in danger of the judgement. . . . Ye have heard that it was said by them of old time, Thou shalt not commit adultery. But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart” (Matthew Chapter 5, verses 21–28). It was a type of character which made far-reaching ethical demands on loving one’s enemies and praying for one’s persecutors. The inner life and the relationship to God took on, however, an external aspect, partly in the form of Christian ethics, but also in the form of the congregation which lived and acted in various places. Jesus takes farewell of his apostles with the following words: “And I say unto thee, That thou art Peter, and upon this rock I will build my church. . .” (Matthew Chapter 16, verse 18). Christianity developed within this tension between what is internal and what is external. The gospel stories about the time following the death of Jesus describe a little group of Christians in a hostile world. The Jews tried, for religious reasons, to put a stop to the budding sect and the Roman army of occupation had reason to keep a close check on potential rebels. Intermittently in this period, the persecution was harsh. In his description of these times, Peter Brown describes how a hostile environment welds together the small band of people (Brown 1987, 253ff.). For the group under threat, it was necessary to mobilize a far-reaching solidarity among its members. It demanded a wholehearted and uncompromising dedication from one and all. The external threat during the first centuries of Christianity brought about a need to control spiritual life, the innermost spaces of the private sphere. “What was most private in the individual, his or her most hidden feelings and motivations, those springs of action that remained impenetrable to the group, ‘the thoughts of the hearth’, were looked to with particular attention as the possible source of the tensions that threatened to cause fissures in the ideal solidarity of the religious community” (ibid., 254). At an early stage the foundation was laid for a tension between the hidden life with God and the group’s need to exercise an extensive control over human inner drives and dispositions, a tension which has followed Christianity throughout Western history. The need for control has continued, in more or less accentuated forms, until modern times, long after the church had become a power factor of its own in society, and continuing after its legal powers had become blunted. Brown points out the role of the concept of scapegoat in holding the group together and defining its limits in relation to the world around (ibid., 276–277). Matters such as sexual morality or specific doctrinal beliefs which were deeply personal for the individual, furnished grounds for the priesthood to exclude a church member

1.3 Power Over Spiritual Life and Thought – Private Sphere from a Religious Perspective

27

publicly and openly. When the power of the Roman Catholic Church was at its height, the Inquisition furnished the most striking example of how the defenders of the Christian faith believed themselves to have the right to investigate and control people’s spiritual life. The home was looked upon virtually as a place of heresy, as a place where heretics hid their intentions, until the time was ripe. Thus the Inquisitor investigated carefully every nook and cranny of a person’s private life. Some of the most detailed descriptions of peasant homes during the Middle Ages come from the careful reports of the Inquisition (Contamine 1988, 456). George Duby holds that the church’s decision, requiring that all Christians should go to confession and confess their sins at least once a year, was, in part, a repressive measure of an Inquisitorial kind: “its purpose was to unearth insubordination and heresy lurking in individual consciences” (Duby 1988, 532). The same pattern with a focus on the inner spiritual life and the heart’s belief which became an object for external rules and extensive checking recurs throughout ecclesiastical history. Both the Protestant Reformation and the Catholic Counter Reformation laid emphasis upon inner piety and the individual’s hidden life with God in reaction to a church which had become too wedded to political and temporal power. Luther preached Justification through Faith in a polemic against the selling of indulgences and drew attention to the believer’s own responsibility for reading and interpreting the Bible. Francois Lebrun points out how collective Catholic piety, where salvation is sought through a comprehensive liturgy and a multitude of sacraments administered by the priesthood, was replaced, as a result of the Lutheran Reformation, by the way of belief, where individuals were left to seek their own salvation (Lebrun 1989, 100–101). Individuals were not, however, left completely abandoned to their search for salvation. The cornerstones of the Lutheran church’s support for the individual were baptism, Bible-reading and participation in Sunday prayers. Individuals were expected to read and interpret for themselves, but the Holy Scriptures were not available to laymen and the need for instruction, both concerning the Bible and how to live a moral life was judged to be great. Catechetical instruction, a form of dialogue between priests and congregation where the priest asked questions about the Bible, the teaching of the church and the life of faith, and the congregation members answered, often took place in the home. It, like church service, formed part of the discipline which the inner spiritual life was considered to need. It was a way of publicly checking and correcting people’s knowledge and their commitment to their beliefs. The same state of affairs is also to be found in Catherine Hall’s description of the Evangelical Movement within the Anglican Church during the 19th century (Hall 1990, 50ff.). The inner spiritual life was itself at the very heart of the Evangelical worldview, and it was through such a life dedicated to root out our own sins, that the morals of society would also be improved. There was a Christian meaning to every thought and action which led every believer to carefully review their own motives and habits. In the evangelical congregation, the private and public spheres were closely intertwined. It was a faith which demanded much of its practitioners. “. . . it aimed at the transformation of the individual self, the becoming of a new person in Christ. This required powerful supports – an internal system of checks, already

28

1 The Private Sphere from a Historical and Cultural Perspective

used by the Puritans and represented by the diaries and journals of the seriously religious, and also external supports from clergy and others among the faithful who could assist in the ceaseless struggle to live as a new soul. . . God was watching and listening, and all those all-seeing and all-hearing eyes and ears had to become the internal conscience. It was necessary to scrutinize every aspect of human behavior” (ibid., 52). The heart must bend itself in obedience and the will must be trained to submit. The individual prayer, the heart’s conversation with God, has played a prominent role in all religious communities and has probably had a useful function in safeguarding a last private sphere in the world of belief. The prayer offered a sanctuary, a protected zone for thought, but it was also a kind of religious life which others were able to influence. One prayed with words taken from well-known psalms, with prayers formulated by the church fathers which were reproduced in countless handwritten and printed copies. There were prayers for all the daily contingencies of life, which were written down and collected in anthologies. Philippe Braunstein describes how there was even a fashion in prayers where the formulation and choice of words varied between generations and between different regions (Braunstein 1988, 624ff.). The common “free prayer” which played an important role in Protestant evangelical movements which arose in the middle and the close of the 19th century and which still forms part of the practice of many churches, would appear to have been one of the more potent instruments for obtaining insight into and control over the individual’s private life. The free life of faith has gone hand in hand with the fear of being inadequate, and of not fitting in, a fear which has pursued the exponents of the Christian faith in all ages. The threat of excommunication, at certain periods, has been all too real for the members of church groups. In the Swedish Free Churches far into the 20th century, careful track was kept of which persons had the right to be included among those celebrating communion together. Views in doctrinal matters, as well as how one conducted one’s private life, could at any time become a topic for public discussion at a meeting of the congregation, and many people who, for one reason or another, failed to live up to the requirements, were excluded. During the 1920s, 30s and 40s, congregational discipline was used as a powerful instrument within the free churches for controlling the life style and doctrinal beliefs of the members. In certain congregations, fifty out of a hundred of those baptised were excluded for such reasons (Kennerberg 1996). What goes on in the bedroom and with whom, is for many churches still a stumbling block and a reason for being excluded from the offices and duties of the church. In the church’s attempts to mould the inner convictions of its members, reading of the Holy Scripture and other writings has been of major importance. Michel Rouche draws attention to the Benedictine Order as an example of how lack of occupation and idleness were regarded as the soul’s worst enemies (Rouche 1987, 539). In order to keep the enemy at bay, it was proposed that a certain number of hours each day should be devoted to physical labour and the reading of ecclesiastical texts. Communal reading took place at mealtime and sometimes also during work in the kitchen or during other activities. Benedict of Nursia provided clear rules about the amount of

1.4 To Retire with a Book – The Private Sphere from a Literary Perspective

29

time that should be spent on private reading; two hours every morning in the period from Easter to the first of November and three hours during the winter half of the year. During Lent, the Sundays were devoted to private reading and at the beginning of Lent the “brothers took ‘a book from the library that all would read in turn.’ There were more than twenty hours of private reading each week. This discipline was so difficult to maintain that two senior monks were assigned to keep watch during reading hours, looking for chatterers, idlers, and others who succumbed to otium or acedia (spiritual torpor)” (ibid., 539–540). One aim of private reading was to promote silence which was intended to help individuals to gather their thoughts and cultivate their inner lives. During the time of the Inquisition, it became clear that this period devoted to personal reading and reflection was also the seed to subversion and heresy and as a result, unsuitable literature was burned or placed under lock and key where it was accessible only to the censors of the time.

1.4 To Retire with a Book – The Private Sphere from a Literary Perspective The possibility of retiring with a book and reading in silence has played a major role in the creation of a private sphere. “Reading puts real-life experience in perspective; the self-absorption it implies can easily stir fantasies and spur the imagination” (Régnier-Bohler 1988, 375). Books act as a stimulus, causing our thoughts to seek new paths and also awakening our intimate feelings and very being. Philippe Braunstein cites Dante as an example of the importance of reading for thought and feeling (Braunstein 1988, 543). Dante begins his poetic autobiography Vita nuova with a methodological remark in which he emphasizes private reading’s intellectual atmosphere and great importance. The very composition of the words he writes, steers the intensity of the emotions which are awakened in reading. “Writing orders the past and thus keeps the sources of memory alive; it is a liturgy that sustains love, a cult of memory that constitutes and renews the writer’s pained consciousness” (ibid., 544). The text provides the reader with the keys for enjoying and developing the secrets of private life. Philippe Ariès emphasizes that literacy and the possibility for people to retire and indulge in their own private reading formed one of the most important factors in the development of the individual’s private sphere from the late middle ages onwards (Ariès 1989, 2ff.). The art of printing books and the circulation of literature decisively altered the boundary between what was private and what was public, but it had been preceded by a new outlook on private reading. The written word gave the opportunity to evade the attention of those around and the public life of society outside the private sphere. It was also possible to evade attention by retiring to a bench in a public park and there become absorbed in a book with thoughts of one’s own, even if it was plain to everyone what one was up to, and perhaps also, what one was reading. The private sphere made available by the written word and printed book, was not, however, open to everyone in society. Literacy was unequally distributed

30

1 The Private Sphere from a Historical and Cultural Perspective

in society, and far from everyone who could read, could also write. Historians treat the occurrence of personal signatures on various types of document as a rough measure of the level of literacy in society (Chartier 1989, 111ff.). There were those who could read, but who, nevertheless, were unable to write their signatures, and mastery of the art of writing could not be inferred from the fact that a person was able to sign a document. The figures tended to exaggerate the level of literacy and to underestimate reading abilities. Having said that, they nonetheless give a relatively accurate picture of the number of people in Europe and the American colonies who had access to this form of private life (ibid., 112). There was a dramatic increase in literacy in the years between 1500 and 1800. Chartier present figures for three countries where the statistical evidence is sufficiently broad to allow one to draw general conclusions (ibid., 112ff.). In Scotland, in the 1640s, literacy was around 25% for the male population. A hundred years later, this figure had risen to 65% for men and 15% for women. In England, there was a corresponding development, with male literacy rising from 30% to 60% at the close of the 18th century. Among English women, literacy was around 40% in 1790. In France, there was also a major increase although the development was behind that of both Scotland and England. In 1690, only 29% of men and 14% of women could write their own signatures in the parish register when they were married. In 1790, the corresponding figures were 48% and 27%. Private reading rapidly caught on in various parts of Europe. Literacy in Sweden would seem to have been exceptionally high as a result of the ecclesiastical law of 1686 in which the State undertook to support the Church in ensuring that the country’s citizens were able to read the Bible, and see with their own eyes what God had promised and offered in the Holy Scriptures. It was the priest who was responsible for teaching people to read and for the teaching of the catechism. Chartier says that at the middle of the 18th century, there were few Swedes who could write, but on the other hand some 80% could read (ibid., 118). In Italian cities, both the abilities to read and write were prominent. As early as the 14th century, there were many, including those from the lower classes, who could read and write. In Florence, between 45% and 60% of all children between 6 and 13 attended elementary school. In the case of boys, the proportion of those able to read must have been even higher since there was marked sexual inequality (ibid., 121). Reading took various forms, but the most sweeping change noted by Philippe Ariès is the growth of private reading in a secluded and silent place where the reader was able to reflect about the text in peace and quiet. “This ‘privatisation’ of reading is undoubtedly one of the greatest cultural changes in the early modern epoch” (ibid., 125). Chartier notes that the art of printing books was certainly a technical revolution of major importance which significantly contributed to intellectual development and to change the conditions of private life. However, the mental change had already taken place through the development of silent readings in rooms set apart, irrespective of whether the text being read was handwritten or printed (ibid., 126). The mental revolution was already under way when Gutenberg developed his method of mechanically producing multiple copies of texts in Mainz in the 1450s.

1.4 To Retire with a Book – The Private Sphere from a Literary Perspective

31

Reading in turn brought about private libraries – at least for those who could afford them – with the opportunity they offered of seclusion, study and meditation. The library became a retreat where people’s private thoughts had room to breathe and develop in dialogue with all sorts of texts. In 1570, Michel de Montaigne retired from parliamentary and public duties and spent his time in his castle where he wrote his essays. In them (III:3), Montaigne stresses the role of the library as a place of retreat for escaping the gaze of the general public. At home I betake me somewhat the oftner to my library, whence all at once I command and survey all my household. It is seated in the chief entry of my house, thence I behold under me my garden, my base court, my yard, and look even into most rooms of my house. There without order, without method, and by piece-males I turn over and ransack, now one book and now another. Sometimes I muse and rave; and walking up and down I endight and enregister these my humours, these my conceits. It is placed on the third store of a tower. The lowermost is my Chapell; the second a chamber with other lodgings, where I often lie, because I would be alone. Above it is a great ward-robe. It was in times past the most unprofitable place of all my house. There I pass the greatest part of my lives days, and wear out most hours of the day. The form of it is round, and hath no flat side, but what serve for my table and chair: In which bending or circling manner, at one look it offer me the full sight of all my books, set round about upon shelves or desks, five rancks one upon another. It hath three bay-windowes of a far-extending, rich and unresisted prospect, and is in diameter sixteen paces void. In winter I am less continually there: for my house (as the name of it importeth) is pearched upon an over-pearing hillocke; and hath no part more subject to all wethers then this: which pleaseth me the more, both because the access unto it is somewhat troublesome and remote, and for the benefit of the exercise which is to be respected; and that I may the better seclude my self from companies and keep incroachers from me: There is my seat, that is my throne. I endevour to make my rule therein absolute, and to sequester that only corner from the communities of wife, of children and of acquaintance. Else-where I have but a verbal authority, of confused essence. Miserable in my mind is he who in his own home hath no place where to be to himself; where he may particularly court, and at his pleasure hide or with-draw self. [E-text at www.uoregon.edu/∼rbear/montaigne]

The possibility of private retreat to the world of books was reserved for those who could read, and had the money and interest to do so. Private access to books, however, rapidly developed during the 16th century. Chartier refers to the survey of inventory lists in Valencia from this time (Chartier 1989, 128ff.). In the period from the end of the 15th century to the second quarter of the 16th century, the average physician’s collection of books had expanded from 26 to 62, the lawyer’s from 25 to 55 and the shopkeeper’s from 4 to 10. Tradesmen in the textile branch who normally only owned one book, increased their “libraries” in this period to a figure of 4, on average. The number of books increased rapidly in this period, but it was the higher social classes which were responsible for the majority of book purchases, and reading as a way of creating one’s own sphere of intimacy, seclusion and reflection was not available to everyone. Reading was not something that one indulged in merely for oneself. It was also a way of exchanging thoughts with other people and thus of discovering that one’s private opinions were shared by friends and colleagues. Before official academies of science had been established, groups of scholars and friends gathered to discuss books which they circulated among themselves. In 1600,

32

1 The Private Sphere from a Historical and Cultural Perspective

a petite academie was founded in Lyons where seven scholarly colleagues and friends met at the home of one of the academy members. “The place where we hold our meetings is the study of one of our academicians. There we gather amid five or six thousand volumes which constitute a library as choice as it is large. That alone provides ready and agreeable assistance to our scholarly conferences” (letter from Brosette, one of the founders and an advocate at the court known as the présidial, to Boileau, 16 July 1700) (ibid., 149). Reading and the associated conversation in special private groups is described by many artists in the 17th and 18th centuries and this period witnessed the appearance of various forms of literary societies and clubs. In the case of reading too, the distinction between private and public was not a strict division into two separate spheres. In the self-selected group, there was scope for expanding the private sphere and yet of exercising a certain control over personal concerns and independence. In other groups, the pressure to participate was an external one and the aim was instead the desire for insight and control over the individual’s thoughts and secrets. Reading offered the possibility of extending the sphere of private life, while at the same time literature in various ways mirrors contemporary society. At certain periods, certain literature has been forbidden for religious or political reasons, but even under governments who defend the freedom of the press, the individual’s reading is determined both by access to books and by what the author chooses to write. The private sphere arises as the result of an inner pressure, but it is also a social construction.

1.5 To Participate in Drawing a Line Between What Is Public and What Is Private Unlimited command over one’s own private sphere has seldom been possible. Not even the individual’s thoughts or religious beliefs have been safe from other people’s aspirations to power and need for control. The more affluent, like Montaigne, could find a place in their own house where they could be themselves, devoting themselves to their own interests and hiding themselves from the outside world. The search for seclusion, however, would seem to be common for both high and low, even if economic and material conditions imposed limitations. In every age, people have tried to find a place of their own, from which they can view and react to the world about them, a protected zone to which they can escape to lick their wounds of embarrassment and recover their courage, find time for their own creativity, confide in their closest friends or clandestinely plan some action or attack. Ideological or religious convictions have been used to justify the invasion of the hidden life of faith, long after the real threat from the surrounding world has disappeared. The church has also played a major role in influencing people’s possibilities of moving between the private and public spheres. The participation of women in public life is a recent phenomenon and their chances of being able to play a part in social life on their own terms is still severely limited. For good or ill, children are still dependent upon the morality of the family.

Chapter 2

The Private Sphere as an Emotional Territory – A Psychological and Evolutionary Perspective

2.1 Emotions Which Are Constitutive for a Person’s Private Sphere The fundamental questions which I try to answer in this chapter are the following: what is integrity and how do we explain variations in reactions on the part of different individuals when their private sphere is invaded? In formulating answers to these questions, one ought to begin by noting the fact that an intrusion in the private sphere is usually followed by an emotional reaction. Psychological research has long been interested in emotions such as fear, dejection, joy, rage and loathing. In more recent times, there has been new interest in those emotions, which apparently presuppose self-awareness and which would seem to be largely social in origin (Tangney and Fischer 1995). Typical examples of these latter emotions are shame, guilt, pride and embarrassment (Lewis 2000b). Emotions, both those which involve self-awareness and others, are more than mere feelings. An emotion such as shame can be divided into three components where the individual’s behaviour includes (i) certain physical features – lowering one’s gaze, hiding the face, sometimes blushing and falling silent, the swelling of veins or wringing one’s hands (ii) the emotional experience – feeling oneself ashamed, heavy, small, exposed and vulnerable and (iii) certain tendencies to act in a certain way – hiding oneself, fleeing or trying to shift the blame for what has happened onto someone else. Emotions embrace all three components. Psychological research into emotions is a relatively recent phenomenon, but its links to cognitive research, research into personal characteristics, social relations and questions about human mental health have engaged the attention of an increasing number of scientists (Lewis and Haviland-Jones 2000). June Price Tangney and Kurt Fischer have summarized part of this psychological research concerning emotions, and have put forward four basic assumptions in order to define what emotions are (Tangney and Fischer 1995, 6). (i) Emotions are fundamentally adaptive and functional. They tend to support human functions, rather than acting as a destabilizing factor. (ii) Emotional reactions are thoroughly permeated by previous responses in processing various events and situations. This processing activity is taking place all the time individuals are observing and regulating their emotional reactions. (iii) Every emotion can be described with the help of a pattern, consisting of cognitive M.G. Hansson, The Private Sphere,  C Springer 2008

33

34

2 The Private Sphere as an Emotional Territory

elements, affective experiences, motivations and the resulting behaviour, which is characteristic for the emotion. This pattern has been formed by earlier events and the reactions to these events. (iv) Emotions can be classified in families according to their affective similarity. As far as is known, privacy has not been treated by researchers examining the emotions, but the reactions to a violation of privacy would seem to fall very naturally within the proposed framework. A violation is linked with those basic defensive reactions which arise when someone is scared. Individuals try to escape or hide themselves. A violation of privacy is also associated with physical signs which are reminiscent of those which have been registered in connection with studies of shame and embarrassment. Inter alia embarrassment is associated with a desire to avoid meeting another person’s gaze, blushing and palpitation of the heart, or in feeling exposed. It is followed by a behaviour pattern where the person affected runs their hands through their hair, clothes or other parts of the body (see Lewis 1995). A form of social coping in an effort to regain social admiration and re-establish the social relation which has been disturbed (Miller 1995) has also been observed. A violation of privacy is also reflected in the individual by certain emotional experiences akin to shame and embarrassment, of feeling placed in a vulnerable position, of being exposed or revealed or robbed of something which up till then had been considered as one’s own secret or personal matter. Things are somewhat more complex when it comes to the tendencies to act in a certain way following a violation of privacy or a threat of violation. On the one hand, we would expect the same tendencies as those which apply in the case of embarrassment or shame, when people’s self-image or some social relationship has been disturbed and there is an attempt to hide away or flee. However, embarrassment is linked with a sensation of failing to live up to certain expectations, and of personal inadequacy in matching the expected norm. This is not so in the case of intrusions into the private sphere. In the latter case, we expect instead, the strong presence of aggression and defence, where persons who are exposed to an intrusion will try to defend themselves and mark off the boundaries of their own territory from others. Perhaps we should seek instead among those behavioural responses which are associated with an emotion such as pride, where individuals lift up their heads, stretch themselves and try to inspire respect in those around them (Stipek 1995). People whose privacy has been violated, fix their eye on the violator and try to show that they are ready and capable of attacking. When the drama takes place in the public domain, it would often seem to consist in ridiculing or discrediting the violator in order to protect their private sphere and preserve certain secrets for themselves. From the emotional reaction perspective, the three emotions of fear, embarrassment and pride qualify as the primary candidates defining the emotional territory which constitutes an individual’s private sphere. As will be shown, there are also evolutionary reasons for this choice. Acknowledging the basic element of agency involved in this sphere of action and experience I will here on use the term integrity for denoting this emotional territory. A violation of integrity is an unjustified intrusion into this emotional territory. The emotional reactions which take place as the result of a violation of integrity are similar to other emotional

2.1 Emotions Which Are Constitutive for a Person’s Private Sphere

35

reactions. Probably several emotions are involved and, as has been pointed out, there is considerable variation between individuals. The question is whether this yields a better understanding of the concept of integrity. To say that a violation is associated with emotional reactions can provide a certain amount of information, and it can be meaningful to study different patterns of reaction exhibited by different individuals by means of research in the psychology of emotions. However, what is still lacking is a coherent theory about the nature of integrity which would explain why individuals react as they do and why one finds major differences in the way in which people react to similar stimuli. Apart from its explanatory value, such a theory could also, at a more general level, serve as a foundation for empirical enquiries. I suggest that an important stepping stone towards formulating a theory of integrity would be to test the idea that emotions do not simply follow in the wake of a violation of integrity, but are constituent elements of it, defining what an individual’s integrity is. A certain combination of emotions defines the scope of the individual’s private sphere. Emotional territory is based on emotions. A theory of integrity, therefore, presupposes a theory of emotions. Richard Lazarus has emphasized the relational element in his theory of emotions and their role in the way in which individuals respond to various challenges in their environment (Lazarus 1991). The underlying idea is that individuals are in a station of continuous interaction with the surrounding environment. Various events in this environment limit or promote the abilities of individuals in achieving their goals. When such an event occurs individuals try to estimate the probable effect on their own welfare and well-being. This appraisal is central to several theories of emotion, and implies that individuals try to determine the emotional importance of what takes place. Appraisal. . . . Is an evaluation of the significance of what is happening in the personenvironment relationship for personal well-being, and which is influenced by both environmental and personality variables. . . (ibid., 87).

In the appraisal process, individuals take note of what is happening in their immediate surroundings, but attention is also paid to previous experiences. The environmental variables include such things as available resources, whether a challenge is immediate, or possible uncertainty in interpreting what is happening or in the estimation of the probability that something will occur. Another example of the kind of thing that has to be evaluated is whether the effect is of a more enduring kind or whether it is of a more temporary kind. Personal variables are made up of such things as motives and views about reality which the individual has previously made use of in his or her life. If the individual stands to lose or win this process of appraisal provokes an emotional response. If the outcome is not consistent with the individual’s goal this gives rise to negative emotions such as fear, embarrassment, shame and envy. On the other hand, if the outcome is in accordance with the individual’s goal, this gives rise to positive emotions such as joy, pride and relief. A basic premise in Lazarus’ theory of emotions is that all mammals must be biologically so constituted that they are able to carry out an appraisal of those changes and challenges in their environment which are linked to their own welfare.

36

2 The Private Sphere as an Emotional Territory

Without such a biological capacity, the individual – and sometimes not even the species – would be able to survive the evolutionary pressure of selection. For these reasons emotions can be assumed to play a central role in evolution. Individuals who are incapable of deciding relatively rapidly if a challenge restricts or promotes the possibilities of their own welfare and well-being do not survive and flourish. As a result their genes will not be able to be replicated in coming generations. This appraisal process must sometimes take place rapidly, and in some sense, automatically. Lazarus puts forward the idea that there is a fundamental psycho-biological principle according to which individuals react to events in their environment by indulging in certain predetermined behavioural patterns. If individuals evaluate their relation to their environment in a certain way this is always followed by a characteristic emotion which is linked to just this evaluation. Lazarus maintains that with the help of such a principle we can explain the fact that many emotions have certain basic features in common, irrespective of the developmental level of the individual involved and of the social context. There is a universal feature which is present in emotional reactions. A well know example is Paul Ekman’s studies of how, given a certain type of emotional evaluation, facial expressions share similar features, irrespective of the individual’s cultural background (Ekman 1973, 1998). Leda Cosmides and John Tooby set the emotions in the context of the development of the brain and of the structure of the mental processes which have been necessary to allow individuals, in the course of evolution, to solve various problems of adaptation, such as acquiring food, recognizing a face, choosing a partner, regulating cardiac activity, dealing with the need for sleep, and developing a capacity to keeping an eye out for predators (Cosmides and Tooby 2000). According to their theory, emotions function as a kind of superior mental program for organizing impressions and choosing an adequate response. They must be able to switch off a sleep program, when a program designed to avoid a predator has been activated by stimuli, or to combine programs for regulating cardiac activity and for sharpening hearing. Some emotions have been established early in evolutionary history and survive as a form of inherited memory, despite the fact that they are no longer functionally required, and despite the fact that individuals try to control their reactions with various kinds of mental tricks. In his book on emotions Charles Darwin describes a visit to a zoological park where he positioned himself to study a puff adder which lay coiled up behind a thick plate of glass (Darwin 1872/1998, 43). He was thoroughly determined not to jump back if the snake went to attack, but his determination was to no avail. When the snake launched an attack, Darwin jumped back a couple of metres with surprising alacrity. “My will and reason were powerless against the imagination of a danger which had never been experienced” (ibid.). Psychologists have subsequently discovered that both human beings and other primates are biologically equipped to react with fear when confronted with objects resembling snakes (Mineka et al. 1984). According to Comides and Tooby there are numerous mental programs which are activated by an emotion such as fear when some menacing intruder creeps close or one finds oneself in an ambush (ibid., 93–94). (i) A change occurs in perception and attention. Hearing is sharpened in order to make out more clearly what is happening.

2.1 Emotions Which Are Constitutive for a Person’s Private Sphere

37

The threshold values of various signals change, so that the individual no longer requires convincing proof of imminent danger. (ii) The individual’s goals change and motives are reversed. Security is assigned high priority, whereas hunger, thirst, sexual desire and pain are suppressed. (iii) The search for information is redirected. Where is my child? Where are others who can protect me? Can I move to a place where I have a better view of what is going on? (iv) Conceptual frameworks are shifted to focus on what is respectively dangerous or safe. Following a well-known path can now be experienced as a threat whereas places which we would normally not visit, such as a fork in a tree beside the path, are considered as safe hiding places. (v) Memory is employed to find old hiding places or to decide whether the approaching face looks just as it did on the previous encounter. (vi) Communication processes change so that a person either sounds the alarm with a note of warning, or is struck dumb in the face of imminent danger. (vii) Various interpretational processes go into operation to try to make out if the advancing lion has caught sight of us, or to decide if the leopard has just eaten, and is therefore no longer dangerous. (viii) Various learning systems are activated so that the threat which is experienced can produce life-long effects. (ix) There are physiological changes so that adrenaline increases, cardiac activity changes, the supply of blood to the peripheral vessels increases and the muscles receive their instructions. (x) There are various types of behavioural reaction, depending on the nature of the potential threat: seeking to hide, flee, defend oneself or on occasions completely freezing. Some of these various responses linked to the emotion of fear are automatic and uninfluenced by the will. When considered altogether, evolution has provided animals, including human beings, with a welldeveloped repertoire involving a complicated mental architecture, although it is not always of great help in solving new types of problems of adaptation. Of central importance for the emotion of fear and common to all the programmatic responses is the focus on the individual’s ability to act in a dynamic environment which is changing all the time, and very often in a hostile or threatening manner. Many reactions are common to different species and individuals, but there is also room for individual variations. In order to explain individual variations in the emotional processes, Lazarus suggests that different individuals can interpret the same events in the environment in different ways, depending upon social and cultural factors in the learning process. There is a central core in emotional reactions so that a person who is in love or is betrayed can always be recognized, whereas what constitutes an act of love or a betrayal is something we learn in the culture in which we grow up. According to Lazarus, the universal components are basically biological in character, whereas the individual differences can be explained as socially conditioned patterns of reaction. However, it is an open question as to what is actually biological in character, and what is the result of social construction. Because Lazarus lays great emphasis on cognitive components in his theory of emotions the part played by automatic behavioural reactions is limited. For Lazarus the cognitive capacities which are associated with the individual’s interpretation of threat or possibilities in the environment form a necessary requirement for the occurrence of an emotion, even if these capacities are basic and are discharged to some extent automatically by the individual. The research carried out by June Price Tangney and

38

2 The Private Sphere as an Emotional Territory

Kurt Fischer also assumes that at least emotions which are self-conscious have a strong social background. These researchers, however, would seem to be uninterested in the question of whether such emotions also have a biological component at least and could thus be partially explained on the basis of evolution.

2.2 The Emotional Territory’s Significance in Evolutionary Development Research into emotions from the standpoint of evolutionary biology provides evidence for the hypothesis that emotional reactions are at least in part steered by primitive basic functions, which evolved long before any higher functions associated with consciousness, came into play. Arne Öhman and Susan Mineka have studied how individuals deal with fear and various phobias (Öhman and Mineka 2001). They proceed from a basic premise similar to that of Lazarus, namely that mammals must have learned early in their evolutionary development to deal with dangers and sudden events in their environment, such as falling trees, bolts of lightning, and sudden lack of oxygen. Appropriate evolutionary strategies include fleeing or avoiding danger, but Öhman and Mineka suggest that this does not occur in accordance with a simple two-part stimulus-response model. Instead, between these two poles there has evolved a central motivational structure which can be activated both by external and internal stimuli. Thus there is a basic capacity which provides a more flexible guide for the individual about what is the appropriate reaction or action. Depending on circumstances, animals, which are threatened by imminent danger, can react, as has been stated, by standing completely still (freezing), fleeing or going to attack. Öhman and Mineka identify the central driving force behind these reactions as fear. In actual fact, the appraisal process is extremely complex, since all the while advantages which promote survival can be won by individuals who learn at an early stage to recognize certain sounds, smells and sensory impressions, before being actually confronted by the danger. It is to be expected that there were obvious evolutionary advantages in assigning parts of fear’s complex motivational structure to basal parts of the brain in order to develop rapid responses which do not presuppose cognitive capacities or conscious consideration. The basal parts of the motivational structure ought to incorporate a certain degree of complexity in order to permit a favourable flexibility in the patterns of response. Certain scents are recognizable and a sound can be so well-known that individuals will at most prick up their ears, or perhaps raise their heads. Öhman and Mineka have developed a theory about what they call the “fear module” and have described it in a way, which makes it empirically testable (ibid.). Starting from the evidence of various investigations into various phobias in human beings and apes, they suggest that the fear module is characterized by four central properties. (i) The module is activated in a strange or threatening situation by stimuli which are relevant to fear from an evolutionary perspective. (ii) The activation by these stimuli occurs automatically and (iii) it is relatively immune to attempts to control it cognitively. (iv) The activation of the module can be associated with a particular

2.2 The Emotional Territory’s Significance in Evolutionary Development

39

dedicated neural path, which is located in the amygdala (corpus amygdaloideum) on the front of the hippocampus. Other parts of the brain are probably involved, but the amygdala is conceived by many as a kind of co-ordinating, emotional computing centre within this system (see LeDoux 1999, LeDoux and Phelps 2000, Panksepp 2000). The automaticity of fear reactions suggests that the fear module has an evolutionary origin, even if repeated training can give the same degree of automaticity in various mental functions. Öhman and Mineka have shown how response to biological stimuli such as pictures of spiders, snakes or angry faces, occurs virtually automatically, in the sense that it is independent of consciousness. Anders Flykt’s research suggests that the same thing holds for certain cultural stimuli such as a pistol pointed at the experimental subject (Flykt 1999). The main evidence for the role of evolutionary development comes, however, from the localization of the basal functions of the fear module in a part of the brain where the cerebral cortex is not at all involved. It must therefore be a question of functions which were established at an early stage of evolution, before the cognitive capacities were able to function freely due to the development of the cerebral cortex. Jaak Panksepp gives an account of studies where it has been shown that injuries to the cerebral cortex only influence the degree of an emotional sequence of events, not the basal emotional reactions as such (Panksepp 2000, 152). The cerebral cortex is not a necessary prerequisite for emotions, but its development has made it possible for individuals to regulate their emotions in various sophisticated ways: prolonging or shortening a reaction, concentrating on the emotional resources by learning or analysing the emotional concepts in a new way. The cognitive components have a prominent role in Lazarus’ theory of emotions. For Lazarus, cognitive capacity has a central function in activating emotional reaction. The appraisal process with respect to how a stimulus in the environment can be thought to influence one’s own well-being is a necessary condition for whether an emotion will occur at all. According to Öhman and Mineka there is a part of the fear module which is relatively independent and reacts freely to various stimuli without involving cognition. Basic reactions are directly determined by certain stimuli, if they are relevant to fear from an evolutionary perspective. It is certainly possible to imagine that the evolutionary development has allowed basic parts of the emotional structure to develop in order to deal with rather complex decisions by pure conditioning. It is, however, first with the development of cognitive capacities that the possibility of social learning arises, and that we can expect cultural variations in emotional reactions. A probable role for cognitive ability is connected with the rationalization of an emotion (Öhman and Mineka 2001, 508). The basic emotional reaction undergoes further processing, the complexity of which becomes increasingly complex, the more developed the cognitive capacity becomes. It is a question of a rationalization phase where the individual, in some sense or other, chooses to adopt a certain attitude to the emotion, or to take command over it. The individual can, for example, believe that the immediate threat in the neighbourhood implies, in the short term, unpleasantness, but in the long run certain advantages. In a similar way, embarrassment can be the price that people consider worth paying to attain a certain value.

40

2 The Private Sphere as an Emotional Territory

Cognitive capabilities can play an important role in the individual’s ability to anticipate danger and take the necessary measures. In part it is still a question of biology but it is the higher levels of the brain which are involved and the fear module develops relatively late in evolution. Michael Lewis has drawn attention to the distinction between emotions as mental states and emotional experiences as the point of departure for a discussion about the cognitive capacities’ relation to emotions (Lewis 2000a). Memory is a necessary cognitive prerequisite for the existence of emotional experiences. A child, who has experienced pain in connection with a visit to the doctor, may react with fear in encountering a person in a white coat. The capacity to categorize various types of stimuli like the capacity for rational thought and morally evaluating what is involved in certain actions, also influences emotional reactions. In research on emotions there would seem to be an emerging consensus about how one looks upon the connection between emotions and cognitive capacities. Arne Öhman holds that in the light of recent research, it is no longer meaningful to ask oneself whether cognitive capacities are necessary conditions for the emergence of emotional reactions such as fear (Öhman 2000). He holds that it is now more meaningful instead to seek an answer to how the interaction between the emotional and the cognitive takes place. Leda Cosmides and John Tooby have in fact defined the concepts so that one completely circumvents this issue (Cosmides and Tooby 2000). For them, cognitive processes are simply another name for all the mental processes which take place in the brain and cover everything that in the everyday sense constitutes ‘thinking’ and ‘consciousness’ as well as basic emotional states which cannot be influenced by will or thought. From the perspective of evolutionary psychology emotions form only a part of a set of different information processes which take place in various parts of the brain in order for individuals to succeed in communicating and socially interacting with the world around them. The capacity for thinking is dissected and consists of a set of co-operating mental programs. Cosmides and Tooby’s terminology, however, changes nothing of substance. It is still meaningful and important partly to understand how various programs have been developed at different occasions in the course of evolution, depending on environmental and social challenges, and partly to understand how the complexity of various programs provide a basis for explaining variations between individuals at the same stage of development. In a fruitful pedagogic image Öhman and Mineka have described how one can look upon the evolutionary development of various behavioural modules in analogy with how one has seen that various organs have developed a high degree of complexity in order for individuals to be able to master their relationship to their surroundings. From this research into emotions it is not possible to draw the conclusion that biology is responsible for the universal features in an emotion and that individual variations can be explained by reference to social and cultural differences. Lazarus’ premises are too simplistic. For one thing, it is reasonable to imagine that there is a variation also in the basic motivational module, which depends both on environmental variations and random biological processes. Biological chance has relatively speaking played a greater role when it comes to properties which develop after the individual’s reproductive phase (Finch and Kirkwood 2000). The individual has

2.2 The Emotional Territory’s Significance in Evolutionary Development

41

everything to win from a genetic program which offers greater flexibility already at the automated stage. For another thing, the higher cognitive capacities which deal with learning and influence the individual’s capacity for strategic choice are subject to evolutionary selection mechanisms. It is therefore to be expected that a certain social encoding is incorporated in the emotional modules. There are also good reasons for paying heed to that part of research in the emotions which describes and explains how social and cultural influences affect the individual’s emotions, and it would be risky to rule out these variables if we want to explain the behavioural variations which arise between individuals and between different cultures. In a study of how bonobo apes learn a language, Pär Segerdahl, William Fields and Sue Savage Rumbaugh have made an important distinction regarding the concept of culture and culture’s evolutionary importance (Segerdahl et al. 2005). The dominant view of the concept of culture in biology is that it is a question of information which is transmitted from one individual to another, and from the elder to the younger generation by means of learning. Cultural influence can therefore be assumed to be greatest among animals with long life histories, something that I shall return to in the next chapter. After observing how the young bonobo ape Kanzi and his siblings acquire their language skills, Segerdahl, Fields and Savage-Rumbaugh draw attention to an evolutionary more important aspect of cultural influence. Kanzi learned to communicate with human beings by participating in everyday activities rather like when children acquire a language in the surroundings they grow up in. Individuals in a group are influenced by a common culture: “a shared way of living containing characteristic activities, tools, environments, communication means, social relations, personalities, games, gestures and so on” (ibid., 8). Culture is a part of the environment which influences individuals, and just as challenges in the natural environment exert a selective pressure, so too cultural changes which are sufficiently long lasting can be expected to influence evolutionary development in a certain direction. The conclusion drawn by Segerdahl et al. is that the primary understanding of language which is transmitted culturally, takes precedence to the language based on grammatical skills. Individuals are born with some kind of social sensitivity, which is highly relevant for their abilities to acquire language skills. Similarly, it is reasonable to consider that the individual’s emotional capacity is shaped by the challenges from the natural and cultural environment. The individual’s emotional motive for behaving in one way or another can be explained in evolutionary terms and is based partly on emotional modules, which are not in any simple way accessible to cognitive processes or the influence of consciousness. Öhman and Mineka have studied the fear module but there is not reason to suppose that the same ideas could not be applied and empirically tested in the case of other emotions such as shame, envy, embarrassment, pride and empathy. Different parts of the brain, however, would appear to be involved in different ways, depending on how much the cognitive capacities are involved, and it is to be expected that there will be variations which depend on the effect of various environmental factors, and also with respect to the cultural parts of the natural life environment of the individual and group (Boyd and Richerson 1985, Durham 1992). I shall return in the next chapter to consider questions about evolutionary selection at group level.

42

2 The Private Sphere as an Emotional Territory

2.3 Integrity – A Composite Property of the Individual An emotion describes an individual’s way of reacting to certain internal or external stimuli. The interpretation of how a change in the internal or external environment can be thought to influence one’s own well-being can occur more or less automatically and involves different levels of consciousness in the brain. The emotional reaction can be recognized from various physiological processes and normally also from special behaviour, even if the behavioural tendency associated with the emotion is not always expressed in actions. Lazarus distinguishes between emotions where the individual reacts in a certain way, given certain stimuli, and properties which have an emotional basis, but where the reaction pattern exhibits a higher degree of stability, even when the circumstances change. A sad person can experience considerable joy when the sun appears in a grey sky, while a cheerful person is able also to recognize certain shades of silver in the grey clouds. The same would seem to be the case with integrity. There is a certain stability in the reaction pattern when circumstances change. The emotional territory is therefore specific for a certain individual and for human beings it should be designated as more stable individual characteristic rather than a short-term emotion. I have suggested that integrity can be described as an emotional territory. Integrity is not in itself an emotion but a characteristic with an emotional basis. This emotional basis is probably very complex and my suggestion is that we define it as a complex characteristic consisting of a number of different behavioural modules. Some of the emotions can certainly be linked to basal parts of the brain, while other components determining behaviour presuppose more advanced cognitive abilities. It is not difficult to imagine that behaviour which sets out to protect from and relate a private sphere to others can be valuable from an evolutionary perspective. Within biology, it is well known that various types of territorial behaviour is meaningful, given individuals’ need to secure their supply of food, protect themselves from their enemies or to have time to decide whether an intruder has good or bad intentions. Individuals can have reason for hiding their intentions so that their strategy about what they intend to do simply cannot be predicted by their opposite number. This provides greater flexibility in being able to deal with new situations and to be in command of the social game. By being in control of one’s private sphere, one gains social distance which can be advantageous in certain situations. Different techniques have been developed to shape and protect our territory. Robert Murphy has described how the Tuaregs make use of their dress to achieve this (Murphy 1984). In French, they are called “les hommes bleu” because of their long indigo coloured garments which more or less completely cover their bodies. A veil hides the region of the mouth from the tip of the nose downwards. The parts of the body which are visible are painted in the same blue colour. By means of the veil Tuaregs are able to distance themselves from other individuals. In negotiating a deal, in resolving a conflict or in the arriving at a settlement in the case of a marriage, the veiled individual can prevent their opposite number from noting important stimuli, thus giving themselves greater freedom to make their own strategic choices and minimise their own vulnerability. From an evolutionary point of view it is sometimes of great

2.4 Three Candidates: Fear, Embarrassment and Pride

43

use to transmit information, but on other occasions it can be directly harmful to reveal oneself. For that reason we would expect that all developed communicational systems between individuals in a social context would involve a capacity to regulate the exchange of information. In choosing between seclusion and participation, the boundaries between the private and public are continually being shifted depending on what best promotes reproduction, freedom of action, or in a human context also ideological and moral beliefs. As a property, integrity ought to have had, and has an evolutionary function in dealing with how we draw the line between the need to protect our own interests and simultaneously interact with the world around us in an effective manner, in a way which favours reproduction and the transmission of our own genes to succeeding generations. This is an important problem for individuals, all of who find themselves torn between seclusion and participation. Awareness of this, and the capacity to manoeuvre and to develop the emotional territory which bridges the gap between these two poles varies within the tree of evolution. As cognitive abilities develop in the course of evolution, complexity increases and in human species one can note great variations within the species.

2.4 Three Candidates: Fear, Embarrassment and Pride Integrity is a composite property consisting of several behavioural modules with different emotional backgrounds. Among conceivable candidates, fear ought to be a basic module. According to Lazarus (ibid., 234ff.) fear is directed at the imminent threat of concrete physical injury. There is a factor of uncertainty or ambiguity because the injury has not occurred but lies in the future, although this future can be very soon. If it is possible rapidly to avoid or flee from the impending danger, fear disappears or becomes less acute. Fear as a motivational structure and behavioural module could be considered as the first necessary component in an individual’s seizure of command over a social space. For certain species in the tree of evolution, cognitive abilities such as memory and imagination make the response pattern more flexible. A rat which in a certain situation is subjected to a painful stimulus will react with the same behaviour on a later occasion when the same conditions are repeated, but where it is not subjected to pain. The rat has a memory capacity, albeit of a relatively primitive kind. There are memory capacities with varying degrees of automatisation. In the case of animals which live longer we can, as has been stated, expect learning possibilities and cultural influence to play a large role. Embarrassment is another conceivable candidate in the emotional territory. Darwin described the phenomenon of blushing as the most human of all emotional expressions, but he linked this phenomenon to several self-conscious emotions and drew in fact no distinction between embarrassment and shame (Darwin 1872/1998, 310ff.). He looked upon the tendency to blush as hereditary, and described in detail the various physiological reactions which are associated with blushing. He also made suggestions about how an emotional reaction like embarrassment

44

2 The Private Sphere as an Emotional Territory

can be measured. For Darwin, embarrassment is linked to how individuals think they appear to others. Attention is paid to their conduct in a social context. Several researchers have recently drawn attention to self-preoccupation when a person blushes. Embarrassment thus presupposes some form of mental capacity to make an evaluative comparison between us and other people. However for Darwin and later researchers, it is not a question of a moral evaluation, but is about a person’s social appearance. Michael Lewis has in a descriptive summary of the various theories of emotion concerning embarrassment drawn attention to the fact that they all speak of embarrassment as an unpleasant feeling which arises when our own self-image is discredited either as the result of the loss of self-esteem or of the esteem of others (Lewis 1995). Embarrassment and shame are two emotions which can be expected to be closely connected both as regards what prompts them and how they are exhibited in various patterns of behaviour. They are both linked to the individual’s self-image, and both can be thought to form part of an emotional territory such as integrity. The emotion of shame, however, presupposes a more complex cognitive capacity and reflection about how we as individuals satisfy certain social and moral rules and conventions. The capacity to feel shame is dependent on cultural influence and learning. It is thus a question of an emotion where it is difficult to find a continuity in the evolutionary history of development, even if all species whose social life is based on various types of social convention ought to have room for an emotion of this kind. According to emotions research embarrassment would seem to be of a more primitive type, in the sense that it does not presuppose that the individual has knowledge of social expectations of various kinds, but is more directly focussed on self-exposure. Shame is the result of a negative outcome in evaluating ourselves. Embarrassment can arise not only in connection with censure, but also when people receive a positive reception from other people. Speakers who are introduced with appreciative words can react by blushing, looking down at their lecture notes for a minute and somewhat nervously fiddling with their clothes or running their hands through their hair. Michael Lewis points inter alia to the level of intensity as an important differentiating factor (Lewis 2000b, 631). The experience of shame would seem to be intensive and heart-rending. It involves a number of higher cognitive capacities for a long time. The individual is intensely concerned with his or her own insufficiency which is experienced as the basic factor giving rise to the emotion. Experiences of embarrassment are not nearly so intensive and all consuming for the individual. The body language is also different. The behaviour of people who feel shame includes a desire to hide oneself, disappear or die. In the case of embarrassment it is instead an ambivalent attitude in the person concerned, who is torn between simultaneously wishing to come closer and desiring to flee. The individual looks one in the eyes and then looks away, in a repetitive behaviour which is followed by a smiling facial expression (ibid.). This behaviour with the smiling face is never associated with shame. Studies have been carried out of embarrassment in children (Griffin 1995) but the theoretical development would still seem to be relatively incomplete. It is clear, however, that it is not simply a question of a private emotional reaction to some event in the world around us. A spectator will immediately recognize the

2.4 Three Candidates: Fear, Embarrassment and Pride

45

signs of embarrassment and the emotion should be considered as a form of social communication which has considerable importance for the development of a course of events (Miller 1995). Michael Lewis allows the possibility of a continuity between shame and embarrassment, so that the difference between them is merely in terms of the emotion’s intensity. He also includes two types of emotion in the embarrassment group. On the one hand, there is embarrassment as exposure; on the other, there is embarrassment as a form of shame involving a higher degree of intensity. Not least from the perspective of evolutionary psychology but also with regard to the ambivalence which is present in embarrassment but not in shame, it would seem more appropriate to differentiate them. Ambivalence expresses a social function in the emotion of embarrassment which ought to be present in species long before some more advanced capacity to relate to social rules and moral expectations had evolved. Embarrassment can be considered to have played an important role in the course of evolution for the individual’s capacity to relate to other individuals and find a place in the social arena. The ambivalent attitude suggests an evaluative component in the emotional capacity, which has the function of deciding if one is liked, treated with suspicion or exposed to hostile attention. This plays an important role in defining the individual’s social space. Embarrassment as an emotion would seem to be a promising candidate for inclusion in the emotional territory which causes individuals to react to invasions of their integrity. To be embarrassed is something unpleasant, even if it is the consequence of praise and approval. This feeling makes individuals try, by means of various patterns of behaviour, to protect themselves, or to take command of situations where the emotion is stimulated. Those who are affected try in various ways to avoid exposure and escape attention. In the case of violations of integrity there is also an element of repudiation or rejection, where the person who has been violated holds their head high to mark the impropriety of the intrusion, and counterattacks. The violation is not in itself a pleasant experience, but the emotional response would seem also to include a trace of pride. Emotion researchers have found a similarity between children’s joy in discovering a causal connection when playing with building blocks, and the type of pride which children display when they discover their own role in this causal nexus. The majority, however, would seem to hold that there are important differences between experiences of joy over simple causal connections and the pride which older children feel when they achieve something which result in some kind of social recognition (Stipek 1995). Hume made a clear distinction between experiences of joy and experiences of pride (Hume 1740/2002). He associates pride not only with a positive and uplifting feeling, but also with a feeling of self-importance, a confidence in the form of a feeling of personal capability and power. That which inspires pride must be related in some positive way to one’s own person. People can feel happiness over a beautiful house but a further necessary condition for experiencing pride is that it is their own house, or that they have been involved in designing it or building it (Taylor 1980). In the case of children who experience joy when the tower of building blocks remains standing after an additional block has been placed on the pile, it would seem that their joy is associated with an insight into their own

46

2 The Private Sphere as an Emotional Territory

contribution. There are studies where one has identified various physiological signs and behaviour as indicators that individuals feel that they have succeeded or failed with something. None of them, however, would appear to be unique for pride (Stipek 1995). From the perspective of evolutionary biology it is quite possible to imagine that there is a continuity between basic reactions of joy prompted by causal processes where individuals themselves are involved in an increasingly more advanced self-assessment based on complex cognitive abilities and which is influenced by various social systems of reward where the individual’s attainments become the object of others people’s appreciation. People whose integrity has been violated react with fear and embarrassment, but are also able to put forward a defence on the basis of the image they have of themselves as being valuable and capable people. The emotions of pride and embarrassment are both associated with social status, something that in evolutionary terms has formed an important focus for selection. To lose face can be thought to increase the motivation to make use of the next opportunity offering an increased chance of social advancement. Like other positive emotions pride can also be thought to function in such a way that it expands individuals’ awareness when it comes to new impressions and new opportunities (cf. Cosmides and Tooby 2000, 104). Embarrassment and pride are linked to functions such as social weakness and social strength, which are important from an evolutionary standpoint. Embarrassment tends to be given the task via social exposure of performing a somewhat ambivalent investigation of one’s own personal status, examining where one is more vulnerable and runs the risk of social isolation, and where one’s strengths lie and where social warmth and solidarity can be rediscovered. Studies of experimental animals have led to a growing knowledge about neural paths in the brain which supply social emotions of this type in mammals (Panksepp 2000, 138). Pride is directly related to a form of social status which is important for individuals, if they are to be successful in their intentions and actions. Social emotions of this kind have great evolutionary significance. As Arne Öhman has pointed out: “Human history is replete with examples of how social conflicts that have escalated out of control provide a potentially deadly danger, not to speak of the social threat in terms of defeat and humiliation they may involve” (Öhman 2000, 575). The evaluation, both automatic and conscious, of one’s behaviour in terms of social success or social failure would probably be an important part of the individual’s framing of new goals and plans of action. Given that individuals in the course of evolution have been compelled to deal with increasingly challenging social situations, the conditions for fear as an emotion have also altered. People still react to some extent automatically at the sight of dangers in nature such as snakes and other reptiles. In studies of selfreported fear, the social fears emerge clearly (ibid., 575). The informants describe fears, which are connected with relations to other people, fear of social criticism, fear of rejection and fear of conflict. Öhman and his co-workers have proposed that these fears are part of fundamental behavioural modules which have been formed in the course of evolution and which derive from a dominance -submission system, the adaptive function of which has been to promote a social order through various hierarchies for dominance (ibid., 576).

2.5 The Role of the Emotions in the Establishment of Social Order

47

2.5 The Role of the Emotions in the Establishment of Social Order – Dominance and Submission Animals which live in groups are often described in terms of dominance and submission, where the internal relation between the members of the group is hierarchically ordered (see Creel and Sands 2003, Drea and Frank 2003). These types of behaviour would seem partly to be related to fear but they are also important as independent components in the social life of the group. The hierarchical position of individuals determines their role and place in the group’s collective search for protection and in the struggle for food. Susan Perry has described how South American ringtail monkeys (Cebus capucina) form strong coalitions where a group of low ranked males and females are prevented from taking part in the search for food in a tree, despite the fact that there is plenty room for them (Perry 2003). Who co-operates with whom is determined by one’s place in the hierarchy, and individuals that do not belong to the coalition are met with aggressiveness. If there is an external threat to the group new constellations can arise in order to defend the group. Being able to find a productive balance between co-operation and competition within a social group is a necessary condition for being able to orientate oneself and react in an advantageous way in encountering predators, prey and hostile groups (de Waal and Tyack 2003, 87ff.). In times of external threat and lack of food, it is to be expected that there will be selective pressure to develop cognitive abilities which favour cooperation, a form of intelligent social life which can be seen in the case of the spotted hyena and some primates (Boesch 2003, Drea and Frank 2003). The basis for co-operation is the social order in the group where dominance and submission form the basic behavioural modules. Often the dominance-submission game takes a symbolic form, where one of the parties tries in various ways to impress the other with his or her strength and courage. There are, however, examples of behaviour where the social order and assignment of roles entails submission for one of the parties, which from an evolutionary perspective is very obvious. The spotted hyenas sometimes spend periods by themselves or in small groups and when they are reunited in the burrow they share, they perform a kind of greeting ritual in which the hierarchical order is once more determined (Drea and Frank 2003, 134). Two hyenas place themselves beside each other and the one which is submissive turns its rear quarters towards the head of the dominant individual, simultaneously lifting its leg and allowing the other to come close and inspects its genitals. The behaviour is then repeated with the roles reversed. The submissive individual must first lift its leg, “exposing their entire reproductive future to the bone-crushing teeth and powerful jaws of a higher-ranking animal” (ibid.). Such behaviour would probably not have survived the evolutionary pressure of selection, if the social order with dominance and submission had not had its own decisive advantages for the species. Arne Öhman has described the characteristic behaviour which characterizes dominance and submission in primates (Öhman 1986, 129). In primates, facial expression plays a crucial role. A dominant chimpanzee male demonstrates his superior social status by an erect gait and the bristling of his hair. “The opponent is

48

2 The Private Sphere as an Emotional Territory

fixated with wide open, staring eyes under frowning brows. The mouth is shut with tense lips and somewhat lowered corners” (ibid.). After a battle, the loser exhibits clear signs of submission. “The submissive expression often includes gaze aversion, and fear-grimaces in the form of a silent bare-teeth display, with the eyes wide open, the brows relaxed or up, and corners of the mouth drawn back, exposing the teeth and sometimes the gums” (ibid.). It is especially interesting to note in this connection that the behavioural patterns which are linked to dominance and submission are very like those associated with the emotions of pride and embarrassment. Proud individuals draw themselves up, raise their heads and gaze, while embarrassed persons sink their eyes and give an ambiguous smile. The human role game does not have perhaps the same crucial importance for the survival of the species, but it would seem that there is a continuity in behaviour between, on the one hand, pride and dominance and, on the other, between embarrassment and submission. The individual’s role as dominant or submissive would seem to play an important part in human social interaction. Pride and embarrassment carry with them evolutionary memories that are associated with the struggle for survival among the hyenas in Africa’s savannahs and primates in their forests. Integrity as an emotional territory which includes the emotions of fear, pride and embarrassment would really seem to have a long evolutionary history which is of fundamental importance for the individual’s social life. Perhaps it should also be pointed out that there is a whole array of positive emotions such as joy, contentedness, enthusiasm and love, which stimulate the individual to be actively attached to a group. However, the focus in the present context is on defensive types of emotion, connected with invasions of a person’s integrity. Both types of emotion have social functions. When integrity is violated, the individual reacts with fear, embarrassment and pride. It is a case of a composite emotional response. Several emotions can be considered relevant, but these three would seem to be central, and at an initial stage in theorising, it can be appropriate to begin with a limited set of emotions. It is a question of a minimalist theory about what constitutes a violation of integrity, seen from the viewpoint of the individual who is affected. I shall hand over to people researching into emotions, ethologists and people investigating the brain, to further develop and empirically test these three behavioural modules, which together make up an individual’s integrity. As Öhman and Mineka have stated in the case of fear, an expanded emotional theory about integrity ought to satisfy four theoretic demands (Öhman and Mineka 2000, 484). (i) It must be clear that the specific behaviour forms a meaningful functional unit from an evolutionary perspective, something that has been demonstrated for all three emotions which make up integrity. (ii) Characteristic features must be specified for each type of behaviour (e.g. how the system is activated, the type of response and the degree of automaticity involved). (iii) The theory must be able to generate hypotheses about what influences the various types of behaviour and how different behavioural patterns associated with the various emotions in the territory, are causally related to one another. (iv) The empirical evaluation must be based on strict tests, whereby competing explanations can successively be discarded. When it comes to measuring the effects of an invasion of integrity, we can imagine using physiological measures, but it would seem to be very difficult to

2.6 The Experience of Self

49

define in an unambiguous and clear way, those measures which allow us to distinguish what emotions are involved. Reading an individual’s behaviour would seem to be a more viable approach. In the case of primates, there were, for example, clear differences in the way of smiling which allowed one to distinguish embarrassment from pride. In this matter, my sole claim is that by providing a new approach to understanding the concept of integrity, I have shown the possibility of reaping a reward from such a theoretical development.

2.6 The Experience of Self As has been shown, an emotion is a behavioural module consisting of three components. The emotional response has certain physical signs, it includes an emotional experience and it is associated with a tendency to act in a certain way. The emotion refers to all three aspects. Already in this basic definition there is a link to the individual as an acting being, notwithstanding that the behaviour in certain cases is very primitive, even if it also in the case of a fundamental emotion such as fear, is a question of a more composite property than a simple condition. By assigning the three emotions of fear, embarrassment and pride to the common shared property of integrity, one arrives at a combined emotional territory where the tendency to act has relatively speaking a complex background. For certain individuals, the cognitive processing can be of an extremely simple kind, but whoever has the capacity to be afraid, embarrassed, and feel a sense of pride, ought, on the basis of the behavioural tendencies which are associated with these emotions, to be able to be designated as acting individuals or actors. In every emotion, there is also a certain involvement of the subject’s self – ego-involvement – something which also characterizes acting individuals, including human beings (Lazarus 100). In the emotions of pride and embarrassment, the relationship to ego-involvement is particularly prominent. Both these emotions are in a fundamental sense linked to the standing one has in the eyes of other people. As the cognitive abilities evolve and cultural factors play a greater role, the expressions for the emotion pride are more related to the image that individuals have of themselves (Isenberg 1980). The same thing ought to hold for the motion of embarrassment. Beginning with the central role that he assigns to the capacity for concept formation and language, Richard Rorty has claimed that an attribute like embarrassment is exclusively human in character. Humiliation is a special kind of pain experience which animals are incapable of (Rorty 1989, 88ff.). According to Rorty, this would presuppose in part a whole number of cognitive capacities which animals are incapable of dealing with, in part an advanced social culture of the kind which human beings have created. However, already Darwin made observations which refute this restrictive division, as far as an emotion like embarrassment is concerned. Darwin’s major work on emotions, which contains observations systematically collected and described with the help of numerous anthropologists, ethologists and people living in other cultures, shows partly that many of the emotions which have been chiefly

50

2 The Private Sphere as an Emotional Territory

studied in the case of human beings are also present in other animals, and partly that many emotions have universal features (Darwin 1872/1998). Paul Ekman has, inter alia in a discussion with the social anthropologist Margaret Mead given an account of how later research into emotions has been able to verify Darwin’s observations (Ekman 1998). The expressions of emotions have strong universal features associated with their value to individuals, as a tool for being able to communicate with the world around them. The hair bristling on the body, the increase in blood circulation to the arms when danger threatens, the hands coming out in a cold sweat and the increase of blood circulation in the legs brought about by fear, blushing and the averting of the eyes brought about by embarrassment, drawing oneself erect and raising one’s head – all these phenomena are universal expressions of emotions. They are to be found in all cultures and more or less in all species of animals. Naturally biology cannot provide the complete answer. Exactly what it is that prompts these expressions can vary between cultures, just as individuals for moral, cultural or religious reasons vary in their reactions to challenges in the world around them and in their way of processing emotional reactions. Darwin noted that young people blush more often than their elders and he mentions two observations where two little girls, between the ages of 2 and 3, blushed when they were reprimanded for something they had done. This is well before an age when one can believe that they had acquired the language skills which Rorty presupposes are involved in drawing his line of demarcation. Given the theory of language learning which Segerdahl, Fields and Savage-Rumbaugh have put forward (Segerdahl et al. 2005) it is not at all difficult to look upon these children as primarily language-gifted in the sense that they are in possession of an emotional equipment for social communication, where the capacity for embarrassment is only one of several components in a fundamentally natural feeling for social relations. Darwin also cites Dr Burgess’ work The Physiology or Mechanism of Blushing from 1839 in which Burgess shows in several cases that the tendency to blush is hereditary. Different families blush to a different extent and the extent to which blushing expands from the face, ears and neck further down the body, varies for individuals from different families. The emotional territory which constitutes the individual’s integrity has developed in the course of evolution in pace with how challenges in the environment have altered the individual’s conditions of life, through several emotions being able to act together in response to these changes and through more advanced cognitive capacities allowing individuals to act together with other individuals in a socially complex context. The property of integrity has considerable survival value since individuals in their own territory have a breathing space before reacting. There is time for interaction between several stimuli, a readiness for flexibility in the individual’s response, and a capacity to interpret and orientate oneself in the social interaction with other individuals. In the course of evolution a state of readiness to act along different lines and to maintain a multiplicity of different relations has developed. For individuals with a complex territory it is possible to imagine that in certain situations they find it more appropriate to surrender parts of that territory in order to gain some other advantage.

2.6 The Experience of Self

51

Integrity develops by individuals trying to deal with various challenges in their environment. Changes in the environment and encounters with other individuals within and outside their own social group who are competing for space, food and sexual exchanges, help to shape the emotional territory which forms the individual’s own sphere of action and experience. The territory is a result of the attempts of individuals to relate to the world around them from the viewpoint of their own interests. These interests can be more or less conscious and certain emotional reactions are determined at such a basic biological level that individuals cannot influence them, even if, at a more general, higher level, they can learn to relate to them with the help of various cognitive capacities (cf. Darwin’s encounter with the snake). The individual’s emotional territory develops in interaction with the surrounding world. It is thus basically a social property, even if it is determined, to a larger or smaller degree, by fundamental neurological and genetic components, and the evolutionary inheritance behind different individuals’ reactions can go back far in time. This is consistent with how psychologists describe emotion as a psychological category which is moulded in the interaction between physiological and social factors (Frijda 1986). Integrity would seem to be a rather robust property in the individual with both an individual variation and the occurrence of characteristic features which are shared between species, by the same species and by individuals in the same social group. With an increased cognitive capacity and increasing demands to deal with complex social information, individual variation increases. In human beings, it is probably not only influenced by different material and social conditions, but also by wider social conventions, religious ideas and moral views. The history of private life, which was described in the foregoing chapter, bears witness to a constant struggle to protect one own private sphere and also to be allowed to participate and develop different types of relation with other human beings. This has never been a simple task. It is easy for personal ambitions to spill over into other people’s territory, and without the co-operation of other people, personal goals cannot be attained. The constant moral and political task has been to accommodate people’s differences, to weigh particular needs against the usefulness of interacting with others in the family or neighbourhood, or among colleagues at work and as a citizen. Chapters 4, 5 and 6 deal with the question of what moral principles should guide us in organizing society, bearing in mind individuals’ dual interest in seclusion and participation. What moral principles should guide the organization of our lives together, both so as to protect peoples privacy and at the same time, respecting them as beings with moral authority, who are themselves capable of having insight into and of participating in the shaping of social institutions. The basic insight to be derived from the historical survey, is that every individual wishes to personally exert influence on how the distinction is to be made between the private and the public spheres. The struggle for social recognition has its roots in the development of the emotional territory, but biology as a discipline makes no normative claims and evolution is not directed towards some predetermined goal. Can one identify rational principles which allow scope for human differences and at the same time form a basis for reaching a reasonable balance among the various interests? Respect for integrity can

52

2 The Private Sphere as an Emotional Territory

be traced back to its social value and biological inheritance, but it looks forward to respect for another person as a being possessing moral and political authority. The question remains if it is sufficient to shape social institutions in accordance with these principles, or if it also presupposes people who possess integrity, not only as a property which other people can violate, but also as a feature of their character which actively guides their attempts to reconcile different interests. What makes a person of whom we can say, that he or she possesses integrity, a quality worthy of respect? In the next chapter, we will first of all discuss why integrity as an emotional territory is something morally worth protecting.

Chapter 3

Integrity as Something Worthy of Moral Protection

In this chapter, I shall discuss three alternative ways of describing integrity as something which is morally worth protecting. (i) In the case of the integrity of animals, some people have proposed a teleological view where we start from the premise that every species is carrying an intrinsic purpose and that this purposiveness is something which should be specially protected. (ii) An alternative to (i) is to focus on the individual’s own experiences in analogy with how respect and moral consideration have been linked to the individual’s capacity to experience pain or happiness. This alternative corresponds better to my own theoretical perspective, which takes as its starting point integrity as an emotional territory. An advantage of using this approach as a basis for moral consideration, is that we are able, with the help of physiological measurements and the study of behaviour, to determine objectively if, and to what degree, individuals are subject to territorial intrusion. Another advantage with a theory of integrity as something related to the individual’s capacity to experience things and social orientation, is that it can be applied to both animals and human beings. The behavioural modules can appear somewhat different for different species, depending both on how different environments have necessitated different strategies of adaptation and how different cognitive abilities are integrated in a response. According to this line of argument, all creatures that are able to feel have a special right to moral protection. As a creature capable of feeling, the individual who possesses the property of integrity is entitled to be assigned a special moral status just as beings with the capacity to feel pain are assigned such a status. Confronted with beings that are capable of sensory feelings, we halt in the sense that we should neither inflict pain on such a being, nor violate their integrity without good reason. (iii) A third approach to moral consideration fixes on the individual’s capacity to act as something morally important, and therefore particularly worthy of moral protection. It is inter alia the Kantian moral tradition which has emphasized respect for the individual as a moral agent, although focussing exclusively on human beings. Morality regulates the intercourse between different individuals and groups. In human history, a number of moral principles have evolved in order to guide the social interaction between people and to cope with different conflicts of interest. According to the Kantian moral tradition, the members of a moral community impose on themselves the fundamental requirement that in their thoughts and actions they must refrain from everything that is based on violence, compulsion or deception.

M.G. Hansson, The Private Sphere,  C Springer 2008

53

54

3 Integrity as Something Worthy of Moral Protection

Ultimately it is a question of respecting another individual’s moral authority. This presupposes a capacity in the individual to be able to impose on themselves this form of basic requirement. It is here that there is a break in continuity with the rest of the animal kingdom, even if human beings share many capacities with the other animals and the actual experience of a violation of integrity in its basic essentials follows universal psychological principles.

3.1 A Teleological Perspective with Regard to Integrity The concept of integrity has in recent years begun to figure in discussions of animal ethics. In this context, however, one usually interprets the concept on the basis of a teleological perspective and not from the individual’s own experience or capacity to act. The capacity to feel pain has been widely accepted as a reason for assigning to animals a moral value which must be respected by human beings in keeping animals or using them in research experiments. Arthur Caplan has in addition proposed an animal’s purposiveness as a basis for moral status (Caplan 1993). If an organism tries to attain certain natural ends, such as drinking water, seeking out its habitat, or resting, then other things being equal, it is wrong to frustrate these desires and ends. According to Caplan, the capacity for feeling and purposiveness constitute two properties which intrinsically provide sufficient ground for ascribing to an organism a moral value which we should not violate without good reason. With regard to these properties, human beings and animals are similar, even if there are often relevant differences concerning the complexity involved which can constitute a legitimate ground for treating different beings differently. The capacity to feel pain is complex inasmuch as it can involve one or more of the following three components: namely a sensory one, an affective one and a cognitive one. A purely sensory pain reaction which can be observed in animals is by no means necessarily experienced by the animal as something painful. The nociceptive message never passes parts of the brain which cause the animal to feel pain. It is first when the affective and cognitive components are activated that it is meaningful to speak of suffering. If an animal has cognitive capacities which, for example, entail that an experience of pain can be anticipated or remembered, the prerequisites exist for mental suffering. The more advanced the capacities for experiencing pain that an animal possesses, the stricter the moral protection should be. In an analogous way, we can imagine that the property of being purposive varies in degree of complexity and can therefore constitute a ground for different treatment, even if all individuals with these properties have a right to moral consideration. Caplan never speaks of integrity in this connection but contents himself by giving purposiveness as a ground for a moral value. Bart Rutgers and Robert Heeger, however, take this purposiveness as a reason for assigning integrity to animals (Rutgers and Heeger 1999). According to their proposal, an animal’s integrity is a property which is composed of three components: the wholeness and completeness of the animal and the species-specific balance of the creature, as well as the animal’s

3.1 A Teleological Perspective with Regard to Integrity

55

capacity to maintain itself independently in an environment suitable for the species. All these components must be present in order that the animal is assigned a right to respect on the basis of its integrity. The concept of integrity can be applied both to the individual and the species. The individual animal is a well defined biological being with a special disposition. The proposal of Rutgers and Heeger forms part of a classical teleological tradition deriving from Aristotle who emphasized that all the parts of an animal, when taken together, form a complete or organic whole which is adapted to its end, that is to say purposive, and where the species has a disposition by virtue of this purposiveness to interact with other purposive parts in its natural environment. Here the concept of integrity is not at all related to the animal’s wellbeing or welfare. As a result, one includes more individuals than those capable of feeling pain in the category of moral subject worthy of our respect; at the same time, one allows more factors than pain and suffering to be counted as morally relevant. The aim is admirable but one overlooks several problems with this teleological way of describing things. It was Aristotle who first promulgated the idea that every species was determined by a specific idea. The species incorporated an inner purposiveness which also formed the basis for its interaction with other species. According to Aristotle, every species has thus an essential structure which must not be altered. The ideas of Rutgers, Heeger and Caplan of species as something biologically intact or whole and therefore worthy of protection is inspired by Aristotle’s concept of species. This essentialist notion is, however, antiquated. Since the triumph of the theory of evolution, this concept of species has been replaced by one which is in practice purely statistical. The old Aristotelian idea of variations as a deviation from a natural type which had been cherished by biologists, was replaced after the work of Darwin, Galton and Mendel by a focus on statistical variations between populations (Sober 1994, Chapter 11). A species is the sum of an arbitrarily chosen number of specific properties, among higher forms of life also determined by the capacity for sexual reproduction. The species does not embody any inner purposiveness but is the statistical description of variations within a population of individuals, put forward by a biologist from the viewpoint of a biological or practical end. If there are limits which should be respected between different species such as those at present described, this depends on such things as concern for the consequences for ecosystems, or the desire for a certain degree of biodiversity in nature. The idea of “the species” as a given, unchangeable entity is no longer compatible with the insights which have been attained through research in evolutionary biology. Species are not sacrosanct or inviolable. Moreover the very idea of purposiveness being latent or expressed in nature, and that this purposiveness or wholeness or disposition forms the basis for assigning a special moral value, is problematic. From the viewpoint of evolutionary biology there are no natural types which bear some form of inner, predetermined purpose. What is purposive depends upon how the individual is able to interact and deal with different stimuli or stressors in their environment. How well the individual succeeds, depends both on its inner and social qualities and on what happens in the world around. Thoughts about the natural type, the purposive or the biologically intact which is especially worthy of protection recurs here and there in the discussion about animal ethics. In the

56

3 Integrity as Something Worthy of Moral Protection

Swedish legislation on the protection of animals, one finds the Aristotelian ontology as a requirement that the animal must be able to indulge in its natural behaviour. In practice, however, there is no such ‘natural behaviour’ and ideas about the purposive or the biologically intact as a ground for ascribing to animals the protective value of integrity give little in the way of moral guidance. There are numerous different breeds of domesticated pigs which are derived from pigs in the wild after a long process of domestication. No pig-breeder would think of treating domesticated pigs like their relatives in the wild. There are instead many variations in behaviour between different breeds which one has to know about, in order to decide if the animal is happy and content. That one of these variants is more natural or original is uninteresting from a moral standpoint. What is crucial is instead to identify, on the basis of the animal’s behaviour, its preferences and how its welfare is affected by such things as its accommodation, how it is handled, its social situation, how its transport is organized etc. (Meyerson 2003, 49). Does the animal show signs of anxiety, apprehension or evasiveness? It is not the place itself, nor the access to rest and water which is morally crucial, but how the animal reacts to this or that. A sheep which has been genetically modified by having a human gene for a coagulation factor hooked onto a gene for its own milk protein, is no longer biologically intact and the operation, on the basis of the definition put forward by Rutgers and Heeger can be viewed as a crime against the animal’s integrity. However in the course of evolution, many genes have been hooked on and off, or switched on or off, and the small behavioural variations which can be distinguished between different breeds, have also in part a genetic background. What ought to be crucial for ethical judgement, are the consequences of the operation for the animal’s health, well-being and integrity as an experiential phenomenon.

3.2 The Moral Value of Protection Originating in the Individual’s Capacity for Sentient Experience The teleological approach to defining the concept of integrity seems to be a deadend. It does not accord with what one knows from the biology of evolution about the development of the species and individual’s attempts to master their environment. It also does not fit in with basic moral intuitions that it is more important to take account of individuals’ own preferences, their health and well-being, than of what is supposed to be ‘natural’. Using the definition of integrity indicated in the previous chapter, we focus on the animal’s own sentient experience. A violation of the animal’s integrity means an intrusion into its emotional territory. The experience of an intrusion into its territory can be inferred from the animal’s behaviour and in several cases, there are clear physiological measurements, which can be used to measure the degree of this intrusion. Like the capacity to feel pain, such a violation of integrity can be read off by means of sensory measurements. Integrity is to be found in rats, as well as in human beings. In the case of humans we can expect a more complex picture since the cognitive capacity is more advanced, and a special behaviour can

3.2 The Moral Value Originating in the Capacity for Sentient Experience

57

be influenced by how the individual deals with such things as linguistic narratives, special views about reality and prudential or moral values. In the case of imagination, human beings differ from other creatures. Human beings would seem to possess a special capacity for imagining things which cannot yet be observed. It is possible to object that it is risky to transfer human linguistic images and concepts, which have a clear meaning in terms of human experiences, to animal experiences. However, some of this is already done when, in the case of children, we look for expressions of emotions such as fear, embarrassment or pride. The objection also presupposes that there is no continuity in the development of various emotions, from beings with simple cognitive capacities to socially advanced beings with rich cognitive capacities for dealing with their emotions rationally. Research in evolutionary psychology has presented clear evidence that some of the emotional response exhibited by human beings are also processed by mental structures which developed very early in the history of evolution, and which can be found to be present in many animals. The development of advanced capacities for a rich social life does not imply that that we are not partly steered by the same system of dominance and submission like other social animals. It remains for ethologists to develop and define the exact meaning of emotional territory in the case of different kinds of animals, on the basis of the emotions of fear, embarrassment and pride, but here there is then a theoretical approach which seems more promising than the teleological way of looking at things. What is required is that one can discover a basis other than the teleological one, to give integrity a moral protective value; in other words, something which one ought to respect and should not violate without good reason. The difficulties involved, however, do not appear insuperable. Here are at least two conceivable alternatives, both of which have the advantage of being compatible with the insights of evolutionary biology concerning a continuity between human beings and the rest of the animal kingdom. The first alternative has been formulated within the framework of classical utilitarianism and in preference utilitarianism. There is substantial agreement that the capacity to experience pain or pleasure constitutes sufficient ground for attributing a moral protective value to those individuals who possess such a capacity, even if the reasons given can vary. There is also broad unanimity, given the capacity of individuals to have their life plans and preferences frustrated, about assigning a moral protective value to individuals who possess such an ability to some degree. These are properties which are morally relevant and should be noted. In both cases, it is a question of sufficient reasons: they are not necessary for assigning a moral protective value. The capacities noted constitute a minimalist ground. It is possible, with the help of further criteria, to specify the distinctions which make it meaningful to distinguish between different individuals with respect to the degree to which they possess these capacities. Thus, as has been mentioned, pain can be divided into three components, a sensory component, an affective component and a cognitive component (Hansson 1996). Via the nociceptive system, pain stimuli are transmitted to the basal parts of the brain, which brings about a pain reaction, but the individual concerned feels no pain. For pain to be felt, the affective capacities must be involved. Depending on the development of the

58

3 Integrity as Something Worthy of Moral Protection

frontal cortex, the preconditions for experiencing pain vary both qualitatively and quantitatively between and among different developmental levels/groups of animals. In addition to the sensory and affective components, pain also has a cognitive aspect. Depending on cognitive capacities such as memory, imagination and language, individuals can experience pain in different ways and choose different strategies to control it, depending on how this pain interacts with other stress factors. In this, human beings form part of a developmental chain and share many capacities with other animals, but also differ in regard to certain points just as the different types of animals used in meat production and animal experiments differ from one another. The questions of whether, and to what degree, these differences between different individuals and different types of animal are morally relevant e.g. whether there are reasons for assigning a higher protective value to a human being than to a chimpanzee or a higher protective value to a rat than to a squid, are not of interest for the moment. Here we are concerned with the more fundamental question of whether capacities can be thought to constitute reasons for giving an individual a moral protective value. Other things being equal, it is morally reprehensible to expose another individual to pain or to frustrate his or her preferences. Good arguments are required if this is to be justified. Such an argument might be, for example, that the pain that is caused is an unavoidable part of the medical treatment. Similarly a dog must learn to obey its master and mistress if it is to function as a pet, and as a result its own preferences must be curbed. Taking as one’s starting point its definition as an emotional territory, integrity as a property morally worth protecting can be assigned to the group of experiencerelated properties. To enter uninvited an individual’s emotional territory is to violate that integrity and as in the cases of inflicting pain and frustrating preferences, there has to be good reasons for doing so. With regard to integrity, the seriousness of the violation can be thought to vary depending upon the complexity of the territory which the individual seeks to defend, just as analogously one distinguishes between pains which only involve nociception and pains which also engage the affective and cognitive levels of the individual. According to this line of argument, the property of integrity is a property worth protecting which is analogous to the capacity to experience pain and the capacity to entertain preferences which can be frustrated. Integrity is thus a property by virtue of which an individual should be included in a moral community. An alternative would be on non-moral grounds to assume that integrity has an intrinsic value as a part of a good life for the individual. The idea here is that what is good in itself is something worth striving after. Such an approach, however, seems to be only partly applicable in the case of integrity. Certain components in the emotional territory such as the possibility of retreating to a secluded place, could be thought to have an intrinsic value, but an important point underlying my definition of integrity as an emotional territory, is that individuals depending on their inner qualities and challenges in the surrounding environment, choose to respond differently to such a supposed intrinsic value. In order to achieve a certain measure of participation in social relations, individuals presumably wish to curtail their opportunities for seclusion. This does not fit in at all with the idea of an intrinsic value. James Griffin’s theory of how a

3.3 Moral Value of Protection from the Viewpoint of the Individual’s Capacity for Action

59

number of prudential values form components in an individual’s well-being, would seem to do more justice to the dynamic of the emotional territory (Griffin 1986, 1996). Griffin puts forward values such as the possibility of some form of control over one’s own life (and thus not simply being a victim of circumstances and the decisions of others), of experiencing some measure of deeper personal relations, of enjoying life and achieving something of substance and significance in one’s life. These values can be thought to be important components as parts of a good life for all human beings, but people assign different weights to them. Someone is willing to surrender a certain degree of autonomy in order to alleviate pain. Some people are prepared to abstain from certain relations with others in order to have more control over their own lives. According to Griffin there is a continuity between the experience of these components as valuable, and the experience of other fundamental interests of a more physical kind (Griffin 1996, 52ff.). Just as one can experience the absence of food as a deficiency, which finds its expression in various physical and psychological symptoms, so one can experience the absence of control, or the absence of personal relations as a deficiency. The experience of these prudential values is a part of human nature in an analogous way to other human properties. Griffin does not deal with the question of animals’ well-being, but there is nothing which contradicts a continuity with other animals where the limiting factor for being able to experience the lack of a basic value as a deficiency, is the individual’s cognitive and emotional capacity. There would seem to be an obvious affinity between Griffin’s theory of value and my presentation of integrity as a property which is valuable to the individual. The focus is on the functions which are protected by the emotional territory, for example the opportunity for seclusion or the opportunities for relations with other individuals and social influence. In Griffin’s opinion, it is these functions which are valuable. Cognitively advanced individuals can choose to relate in different ways to these valuable functions, and in some sense give up part of their territory in order to win something else which is significant. Integrity as an intrinsic property cannot, however, be regarded as such a value, but rather forms a necessary condition for the ability to experience these values. It is a question of a mental property which is to be found in all social beings without which social relations, even in a very primitive sense, are impossible.

3.3 The Moral Value of Protection from the Viewpoint of the Individual’s Capacity for Action Given individuals’ capacity to experience an intrusion into their emotional territory as a violation, there are thus moral reasons for other people to halt outside. An alternative, if one wishes to argue for integrity as morally worthy of protection, is to link this property to the individual’s capacity to act. People who have the capacity to be afraid, to be embarrassed and to feel pride, given the tendencies to action which are linked to these emotions, and the state of readiness for certain actions

60

3 Integrity as Something Worthy of Moral Protection

which emotional territory supplies, ought to be able to be designated as agents or actors. Already by means of the interplay and balance which develops between the three emotions of fear, embarrassment and pride in the brain, there exist possibilities for looking upon the individual as an independent agent. In every emotion there is a degree of ego-involvement, something that is characteristic for agents. Starting from the co-operation between the three specified emotions, a relatively complex self-image is developed. In the social interaction the subject’s self-image is reinforced by role-taking in terms of submission and dominance. To be able to have integrity violated is thus a sufficient condition for enjoying the respect which belongs to an agent. Even if one does not achieve a more advanced level as a moral actor, it should be sufficient to include individuals with this property within a moral community of such individuals. It is reasonable to look upon individuals who are able in certain situations to swallow their pride, refrain from exploiting their superior position and making use of another person’s embarrassment, as moral subjects. As shall be shown later, various forms of play offer a pedagogical framework for moral education which helps gradually to give an individual a sense of fair play. The necessary precondition for this moral development is to be found in the basic interaction between the emotions of fear, embarrassment and pride. The emotions form a substrate for the individual’s developmental possibilities, or to put it another way, function as organs which are developed in dynamic interaction with the environment just as other organs such as lungs, skin, nervous system have equipped individuals to deal with challenges in their environment. Interplay between the emotions of fear, embarrassment and pride constitutes a necessary condition for a life as a socially and morally acting being. Psychopaths who display an incapacity to respect other peoples’ integrity can be considered as pathological examples of cases where the condition is missing. The psychopath is continually on the move, and never manages to establish long lasting, secure emotional relations with other individuals. It is especially in the Kantian tradition of ethics that emphasis has been placed on respect for the individual as an agent, however, only with respect to human beings. In several works, Onora O’Neill has drawn attention to this particular feature of Kant’s moral philosophy (O’Neill 1989, 2002). Morality regulates the intercourse between different individuals and groups. In the course of human history a number of moral principles have emerged to guide the social interaction between human beings and to deal with the various conflicts of interest which arise. Kant’s idea is that we must only choose those principles for our actions which we would wish to see universalized (Kant 1785/1965). We must imagine ourselves in a situation where the principles we ourselves subscribe to are also applied by other agents to all others, including ourselves. Nobody would then approve of principles which are based on force, deception or violence, as universally valid moral maxims. In certain situations an action which is based on compulsion can be accepted, but then only as an exception to protect freedom of action. Individuals can, in certain specified circumstances, be forcibly treated against their will in order that they cannot performs actions which are against their own interests or which threaten other people. Thus the aim is always to support, as far as possible, the confidence of individuals in their own capacity so that they can, without the use of compulsion, take charge of their

3.3 Moral Value of Protection from the Viewpoint of the Individual’s Capacity for Action

61

own lives and those of other people. O’Neill has developed a system of ethics based on such principles in order to deal constructively with a series of bioethical issues, but this lies outside our present focus (O’Neill 2002). According to the Kantian moral tradition the members of a moral community impose a fundamental requirement on their thoughts and actions to abstain from whatever is based on violence, compulsion or deception. The moral responsibility extends only to those with sufficient capacity to follow another person’s reasons and arguments for acting. There are more individuals involved in the moral community who are worthy of protection (see Kant’s concept of Schützgenossen, Kant 1793/1982, 46), but there is a clear limitation in Kant’s thinking when it comes to those who can conceivably be included on the basis of their cognitive capacities. Animals certainly do not belong, although there are moral reasons for being concerned with their well-being (Hansson 1991). Nor did Kant accept feelings as a basis for moral action, even if he presupposed a fundamental moral feeling associated with the will to be moral. Emotions have no place in his structure for moral thinking and acting. They cannot help the individual to decide what is right or wrong (I shall return to the question of the function of emotions when I deal with acting morally in Chapter 8). On the other hand, respect for the agent is of fundamental importance. The moral principles which are applied must not be allowed to completely eliminate an individual’s scope for action. In this way, one has an indirect protection of those properties which are needed for an individual to react to challenges in the world around and to other individuals. In the Kantian tradition, the individual’s communicative properties are morally valuable, an aspect of Kantian ethics which has been developed inter alia by Jürgen Habermas and Seyla Benhabib (Benhabib and Dallmayr 1990, Habermas 1968/1987, 1985/1991). Integrity defined as an emotional territory which includes a disposition to action and where individuals relate to the world around them in a structured way is therefore something which is morally worth protecting. As in the understanding of other morally important properties, it is possible to conceive of a continuity from very basic capacities which are present in some animals to a very complex communicative capacity which involves various cognitive capacities in human beings. Margaret Archer has developed a theory of human action in which she rejects, on the one hand, biological simplifications which explain human action in terms of their biological constitution, while, on the other hand, attacking what she calls the sociological fundamentalism of many postmodernists, who claim that advanced linguistic and cultural capacities form a necessary condition for human action (Archer 2000). Human properties and possibilities are neither predetermined nor exclusively social in character, but arise as a result of practical attempts to relate to the surrounding world. Archer deals with questions about human action from a sociological perspective and shows that there is a continuity between children’s mastery of challenges in their environment and adults’ socially complex actions. She does not discuss the question of the evolutionary genesis of these properties, or whether human action is continuous with the types of behaviour which can be observed in other animals. Her theory, however, fits in well with the results of evolutionary biology and neurobiology. Jaak Panksepp emphasizes, for example, that the demonstration of basic

62

3 Integrity as Something Worthy of Moral Protection

emotional structures in the brain does not lessen the need for a complementary perspective, in order to explain, for example, how human beings deal with emotional challenges in real life (Panksepp 2000, 140). Kim Sterelny who starts from the empirically reasonable premise that the environment which tests individuals in the course of evolution is neither thoroughly friendly nor neutral, has suggested that there are different survival advantages at stake. These can be attained partly by cognitively dealing with several different stimuli simultaneously with a certain robustness, and partly by developing a broad multiple response to these stimuli (Sterelny 2001). Cosmides and Tooby have for example described the capacity to prioritize between different emotional impressions, as an important control function of great adaptive value (Cosmides and Tooby 2000, 103). This capacity to prioritize helps the individual to decide which functions are compatible, as for example hunger and boredom, and which exclude one another, such as searching for food and fleeing from a predator. Individuals’ life possibilities are strengthened to the extent that they can anticipate behaviour among their social counterparts. Because the environment is not completely transparent and is sometimes threatening, the pressure to develop the communicative capacities is increased. In primates, one has observed advanced capacities to read various behavioural patterns in a competitor. These capacities, when taken together, help individuals to make decisions about mental states, such as fear (de Waal 1982). Animals in general do not sit around and wait passively on information from the world around them. Sometimes the events in their environment are signals they read as a direct result of their own investigations. Parrots and other birds which hunt tree-boring insects make use of sound which they themselves produce to locate their prey. African wild dogs test a possible quarry by means of behaviour designed to reveal vulnerability (Sterelny 2002, 271–272). Animals interpret not only their environment but also the changes which they themselves can bring about in it. Through the capacity to combine several different types of stimuli in a robust way and apply a broad spectrum of responses, preferences have evolved which make the animal better fitted to dealing with new factors in the environment which have been caused by the changes the animal itself initiates. There is some argument about the extent to which the animal itself can, and needs to, bear in mind how a certain action leads to a certain result, just as there is about where in the tree of evolution we find this intentional type of behaviour. Sterelny’s point is that there is a continuity in the development of preferences and these presuppose the capacity to deal with several stimuli simultaneously in a robust but flexible way. Animals can learn what they need, not only how to satisfy their needs, and with their capacity to deal with their preferences individuals can postpone gratification to a later occasion, something which is important for planned behaviour. From a moral point of view it can be necessary to make a distinction between an individual’s different capacities for preference-steered actions. In this connection it is interesting to see that there is a continuity between different kinds of animal. Basically one ought to encounter those properties which are associated with dealing with fear and the development of a personal identity, initially not as self-consciousness in some more advanced sense, but as an emotional territory which is characterized

3.4 Integrity as a Socially Significant Property – The Starting Point for Moral Integrity

63

by a certain stability and gives a sufficient flexibility in the pattern of responses and preferences. Derek Parfit has, as a basis for ascribing an identity, referred to the psychological continuity of a number of mental states over a period of time (Parfit 1984/1992). He rejects the view that an individual possesses a unique identity in some other sense. Given the discoveries of evolutionary biologists, there is, however, reason to search for individual differences on the basis that every individual has special patterns of responses and preferences. All individuals can be thought to have a more or less unique arrangement of preferences which are partly based on the form of their particular emotional territory and partly on how, given this territory, they relate to the world around. Jeanette M. Haviland-Jones and Patricia Kahlbaugh have described the significance of the emotions for the development of identity in a way which is compatible with Parfit’s theory. When individuals are confronted with a new situation, they recognize the emotional signals on the basis of earlier experiences, and different experiences can be compared with the help of the emotional processes. In their terminology, emotions are the glue which binds experiences together and gives them an identity of their own (Haviland-Jones and Kahlbaugh 2000, 294).

3.4 Integrity as a Socially Significant Property – The Starting Point for Moral Integrity The development of integrity as a socially significant property is dependent on individuals’ emotional territory, which they possess partly as an inheritance from their parents. The brain is packed with basic emotions which steer social interaction. Fear can be seen as a mental program which influences the individual’s choice with respect to social functions such as flight, fight, tolerance and co-operation. In a corresponding way, embarrassment and pride form the basis for individuals’ social role-taking in terms of submission and dominance. The size of the brain has long been thought to be directly correlated with the cognitive capacity of individuals and indirectly thereby to their capacity for social interaction. The individual’s life history has also been found to be highly significant (van Schaik and Deaner 2003). Natural selection is expected to favour more rapid life-cycles because the genotypes which are reproduced more rapidly will end up by replacing others in the population. There must, therefore, be considerable advantages with a longer life-cycle for each generation. Such an advantage might be the capacity for cognitive adaptation and the possibility of mastering social challenges. These advantages constitute a form of delayed profits which have shown themselves so important that they counterbalance the cost of development in the form of diminished reproduction (ibid., 19). The individual benefits from an emotional territory of a certain complexity in order to be able to make use of a socially complex life. An important function is connected with the capacity for social learning. A longer life provides a possibility for the growing individual to profit from the experience of older members of the group. The adult elephant has a social memory which helps it

64

3 Integrity as Something Worthy of Moral Protection

to keep track of other individuals and decide which individuals should be avoided (Payne 2003, 58). An individual is recognized even if it is many years since it has been encountered and, in the meantime, its social status has altered. Katy Payne describes a great individual variation among elephants when it applies to their social capacity, which gives rise to a rich and complex tapestry of social relations. Through smell, taste, the interpretation of sound, visual impressions and tactual sensations, the social ties between individuals are reinforced and expressed in emotionally charged greeting ceremonies (ibid., 59). “With the brain primed for social learning, sources of social complexity multiply during the long lifetimes of individual elephants. New status, new alliances and new rivalries develop, adding to and altering existing ones as the result of hormonal changes and increasing experience. Old females become repositories of ecological as well as social information and take on different roles from those of younger relatives” (ibid., 85). Social competence is crucial for the capacity to anticipate or manipulate the behaviour of conspecifics and in order to survive the stress factor presented by a partly hostile world. There is a selective pressure behind the development of cognitive capacities, because of the advantages which accrue from mastering a socially complex world, and thus also an emotional driving force which explain the development of the ever more refined and varied repertoire of emotional responses which make up the individual’s emotional territory. The capacity to recognize other individuals in the group would seem to be an important factor in the development of socially complex societies. From studies of bats, one has discovered that this capacity does not always presuppose learning. Twenty million bats (Tadarida brasiliensis) can inhabit the same cave where a female must be able to pick out its own young among the thousand of other bats congregating in a space of a square meter (Tyack 2003, 345). Bats solve this problem by means of individually distinct, auditory signals which the young transmit and which the mother recognizes. It has been shown that the majority of these individual characteristic auditory signals are hereditary (ibid.). Dolphins also make use of individually distinct signals in order to keep track of the various individual relations with conspecifics (Tyack 2003, 361). For this and other species it would seem that the individual capacity for recognition is developed via a complex social interaction which presupposes a good memory and a good feeling for hierarchies of submission and dominance. The spotted hyena is an example of such a socially advanced species. It would seem to recognize other individuals at a distance of several hundred metres, a capacity that is of great importance for an animal which during certain periods, lives in solitary isolation and is therefore compelled to develop methods for the transition from a solitary life to a social community (Drea and Frank 2003, 135) (cf. the greeting ceremony which is interesting from the evolutionary standpoint, when two individuals meet, as described in the previous chapter). The spotted hyena lives with marked territorial frontiers and central areas which it defends against intruders. There is no (or very little) shared responsibility for looking after the young. Their foremost protection is more to do with the hole where they spend their infancy, than with the near proximity of the mother hyena (ibid., 127). Like other species which live in holes or lairs, home is the safe and

3.4 Integrity as a Socially Significant Property – The Starting Point for Moral Integrity

65

secure place for the growing generation. The various individuals display a broad behavioural repertoire for friendly relations, which strengthens social ties, allows integration and co-operation or contributes to the solution of conflicts. Games have an important function in developing reciprocity and confidence in addition to tuning motor skills. As Christine Drea and Laurence Frank point out, playing behaviour offers a counterbalance to the otherwise prevailing aggressive distribution of roles on the basis of dominance and submission (ibid., 134). Altogether one has a picture of complex emotions and social skills in different species which can be thought to constitute the evolutionary foundation stones of a system of morals. Socially advanced animals such as the spotted hyena, primates, dolphins and elephants which have all been cited here as examples, rely on a form of social expectations when they are involved in different kinds of social relations. Because of this, Marc Bekoff has proposed that they also have a view about what is just (fair) (Bekoff 2001, 2004). Whoever breaks the social code with regard to rank in the hierarchy and behaviour is reprehensible and can be considered to be looked upon in this way. Bekoff’s thesis on the occurrence of a moral system among animals derives from studies of play in various species of animals. When animals play they make use of behaviour similar to that used in other connections when they meet predators, when they seek food and when they mate, but they adapt the behaviour to the rules of the game and use the opportunity to swap roles. What is interesting with play, is that there would seem to be a clear understanding about what for the moment counts as play and what is for real. An agreement to play is communicated with the aid of various signals and presupposes a capacity in both parties to read their opposite number’s intentions. Among other things it involves rapid exchanges of eye contact during play, in order to ensure that it is still a matter of play and has not become a serious matter (ibid., 84). Whoever cheats or transcends the boundaries and injures the other, becomes an undesirable member of the play group (ibid., 83). Bekoff holds that social play has an important function in allowing the individual to learn the rules of the group, and to resolve various conflicts within the group. Play can seem to be a costly activity from an evolutionary perspective, but the energy invested in it pays in the long run, precisely because of its significance for the development of social competence, where the individual who corresponds to social expectations gains advantages in the group. The selective pressure seems to lie on the group, which through co-operation based on a social morality of this kind, has better chances of surviving than other groups. However, as Elliot Sober and David Sloan Wilson have pointed out, as soon as a social norm of this kind develops it is also advantageous for the individual in the group to keep to this moral system and act fairly (reviewed in Bekoff 2001, 86; see also Sober and Wilson 1998, 135–137). Christopher Boehm has also shown that behaviours may become evolutionary stable if they are beneficial at a group level, even if they diminish the relative fitness of individuals in the group (Boehm 1997). Darwin explained the development of morality with a reference to selection among various properties which occurs at group level. “It must not be forgotten that although a high standard of morality gives but a slight or no advantage to each individual man and his children over the other men of the same tribe, yet that an increase in the number

66

3 Integrity as Something Worthy of Moral Protection

of well-endowed men and advancement in the standard of morality will certainly give an immense advantage to one tribe over another” (Darwin 1871, 166). Darwin’s idea forms the starting point for a theory presented by Elliot Sober and David Sloan Wilson about a selection of morally important functions, such as altruism, through a natural selection which occurs at several different levels: at the gene level within an individual organism, among individuals and among groups (ibid.). The idea of selection through natural selection at the group level has been, and is still to some extent controversial among biologists. Sober and Wilson describe their theory in the light of a detailed critique of those who have only looked upon the individual or the gene as raw material for natural selection. There is no reason here to repeat what they have to say in detail, and the focus of interest in the present work is not on how altruistic behaviour can be explained in evolutionary or in psychological terms. Their explanation of how socially important behaviour can be selected on the basis of social norms, which with the assistance of rewards and punishments, can reinforce a fundamentally social behaviour, does throw, however, some light on questions about the significance of emotions for social and moral development. I shall begin by briefly summarizing the basic argument put forward by Sober and Wilson (ibid). Natural selection presupposes (i) that there is a variation between different phenotypes, (ii) that these phenotypes are inheritable and (iii) that there are differences with regard to survival and reproduction that corresponds to the different phenotypes. There is no genetic determinism whereby a genetic change corresponds to one phenotypic consequence, but rather small changes in the genome can give rise to large phenotypic variations. First of all there is a dynamic at cell and organism level because a gene codes for many different proteins and secondly, small genetic differences between different groups of individuals give rise to large differences, because of different social and ecological challenges. As far as behaviour is concerned it should be noted that many of the qualities involved are continuous and cannot be discretely defined. There can be advantages to be won by competitively defeating another group also through small variations in a certain kind of behaviour. Differences in phenotype must show a heritability in order that natural selection will be able to bring about an evolutionary change, but it is important to recognize that the concept of heritability is not limited to genetic mechanisms. Sober and Wilson maintain (with the support of Boyd and Richerson 1985) that “cultural processes can also cause offspring to resemble their parents, and this kind of heritable variation can also serve as the raw material for natural selection” (cited in Sober and Wilson 1998, 107). Cultural differences between different groups of individuals are not always stable over several generations, but some of them are transmitted faithfully from generation to generation in the course of several generations. The idea is already to be found in Darwin who defined inheritance as the tendency of offspring to be like their parents. The focus is on the phenotypic variation of different properties. It is only this variation which natural selection “sees”, but in actual fact, it is of no importance whether the cause of this variation is genetic or cultural as long as the property exhibits heritability and advantages with regard to survival and reproduction. “In most human social groups, cultural transmission is guided by a set of norms that identify what counts as acceptable behavior” (ibid., 150). Individuals who follow a norm are rewarded, while those who break it are punished or excluded

3.4 Integrity as a Socially Significant Property – The Starting Point for Moral Integrity

67

from the community. This transmission can certainly take place with the help of various mechanisms, and does not need at all to be stable, hereditary, or provide advantages of adaptation with regard to survival and reproduction, but it can also take place through natural selection at group level. Sober and Wilson carried out an empirical investigation to test the hypothesis that phenotypic differences between groups can sometimes have a greater heritability effect than differences between individuals. Their investigation provides evidence in support of not rejecting selection at group level, which favours social norms leading to other, functionally better-adapted groups, alongside selection at gene and organism level. The empirical material consisted of a random sample of ethnographical material representing 25 different cultures, from a large database, the so-called Human Relations Area File (HRAF) compiled by anthropologists in the course of many years. It requires a larger empirical basis in order to be able to falsify the hypothesis, but such an investigation is planned and there are detailed anthropological studies which strengthen the hypothesis. As an illustration, Sober and Wilson point to the interaction between two African neighbouring tribes, the Nuer and Dinka, which was first studied by the British anthropologist E.E. Evans-Pritchard (ibid., 186ff.). Forty years of anthropological research on these tribes has been summarized by Raymond Kelly (1985) and it is Kelly’s account which is referred to by Sober and Wilson. The main features of the interaction between the two cultures, the Nuer and the Dinka, shall be presented here (ibid.).The Nuer emerged as an offshoot of the Dinka, but having soon acquired special features, they were looked upon as a tribe of their own. The Nuer expanded rapidly at the Dinkas’ expense, something which can be explained by a social organization which was able to deal better with the needs of the larger group. Both tribes lived by tending cattle and growing of millet. The driving force to territorial expansion was primarily the acquisition of more land for grazing and cultivation. They both had reasons to seize cattle and land from each other, but the driving force was greater in the case of the Nuer because of their unusual social organization. Both tribes practised a dowry system where cattle were transferred between families in conjunction with marriage. For the Nuer, however, the dowry was larger which entailed that there was a greater need for cattle and because of this, their lands more rapidly suffered from overgrazing. This gave rise to the desire to launch an invasion and take possession of the land of the Dinka tribe. Both of the tribes had more or less the same military strategy, but the Nuer were able to assemble larger and better organized forces for their attacks. What seems to have been crucial, however, was that the Dinka, immediately after a successful battle, began to enjoy the fruits of victory. Raymond Kelly has drawn attention to this specific feature (cited in Sober and Wilson 1998, 188): “a large [Raik Dinka] raiding party surprised a Nuer village and, Dinka-like, sat down to a happy day of wrangling over the spoils. It was their last, for meanwhile the Nuer surrounded them, and in the ensuing panic slaughtered them to the last man.” In contrast to the Dinka, the Nuer always postponed sharing out the spoils until the danger of a counterattack was over, and there was a special regulation about how the booty was to be divided among the group. In the case of the Nuer, family ties also played a more prominent role in keeping together different groups within the tribe. A small Dinka unit was made up of a group which cultivated and made use of a certain common area. Access

68

3 Integrity as Something Worthy of Moral Protection

to land limited the group’s possibilities for development. The Nuer’s social system was based on family ties with the result that access to land did not impose the same limitation on the group’s opportunities. The group was held together socially, albeit not always geographically. In spite of the fact that many individuals in course of time flitted between the different tribes, the social behaviour and cultural differences remained stable. Raymond Kelly sums up as follows (cited in Sober and Wilson, 190): “the key features of Nuer social and economic organization that were instrumental to territorial expansion remained unaltered by the massive assimilation of Dinka and Anuka tribesmen”. This bears out the hypothesis that the phenotypic differences between different groups can exhibit greater heritability than the difference in phenotype in the case of individuals, “The Nuer social system was not perfectly adapted but merely more competitive than the system it replaced” (ibid., 190). This shows in itself only that social groups can adapt to new challenges, that variations between groups, given different social norms, may remain stable and that these variations can be shown to have certain advantages for survival and reproduction so that one group competitively drives out another. It says nothing, however, about the psychological mechanisms or motivational structures which form the basis for the establishment and maintenance of social norms. Access to the system of reward or punishment can, as Sober and Wilson point out, be thought to constitute a direct requirement for the development of various kinds of social behaviour (ibid., 151ff.). Both psychological egoism and altruistic motives can, as Sober and Wilson show, function as mechanisms for the occurrence of social and moral behaviour which is important for the groups’ functional adaptation. In the case of human beings, it is possible to conceive of ideological, religious and moral principles leading the way. Probably affective motivational structures play a major role in allowing social development and diversified social responses to various challenges in the natural and cultural environment. The risk of being exposed to general ridicule or of being publicly humiliated has been demonstrated to be a powerful stimulus in encouraging socially accepted behaviour in many cultures (see Amhara in Sober and Wilson, ibid., 182). The occurrence of a more or less complex emotional territory, with elements of both embarrassment and pride, should rationally have served as an important factor in explaining the mechanisms behind both social competition and social co-operation. Social expectation can be thought to emerge only in individuals with sufficient emotional capacity to feel themselves violated. This social expectation in the individual has a more or less complex social room for manoeuvre, depending on the challenges which groups with many individuals encounter in the world around them. Frans de Waal has pointed out three fundamental types of priorities which concern individuals in the interaction between competition and co-operation which they help to shape: Exploiting others: obtaining services, making friends in the right places, getting the most out of profitable partnerships; Making relationships worthwhile: maintaining and fostering the bonds of friendships by engaging in mutualism, reciprocity, and social tolerance; Coexisting peacefully: getting along and protecting valued partnerships, despite the competition that is inevitable when interests collide (de Waal 2003, 233).

3.4 Integrity as a Socially Significant Property – The Starting Point for Moral Integrity

69

Individuals use their emotional capacities to assist in being able to decide which interests are at risk and to be able to communicate their interests in a larger or smaller multiplicity of relations. Jan van Hooff and Signe Preuschoft have observed how chimpanzees used smiling in different ways, often as an expression of fear, but also as an expression of confidence and social security that an individual can experience in meeting and living with another individual (van Hooff and Preuschoft 2003, 284ff.). In an overview of a large number of studies, Lisa Parr has described how the emotional capacity to communicate is of central importance for chimpanzees in particular (Parr 2003, 288ff.). She reviews a host of primary data confirming that these animals possess a basic capacity for deciding the emotional value expressed in a conspecific’s face – is it negative or positive information? – and they can also use this information to meaningfully categorize different social events. Referring inter alia to Paul Ekman’s studies of common features in facial expressions in different cultures, Parr draws the reasonable conclusion that “these data confirm that chimpanzees have a basic understanding of the emotional valence, positive or negative, that is communicated by their facial expressions, and are able to use this information to categorize emotionally meaningful social and non-social scenes. Additionally, these data support the claim that emotional facial expressions in humans and nonhuman primates share a biological, as opposed to cultural, continuity” (ibid., 290–291). These data and conclusions are certainly compatible with a theory of integrity as an emotional territory with a strong biological basis. However, after going through Sober and Wilson, there is no reason to counter pose that to a possible cultural continuity, as Parr does. Among chimpanzees, as among other cognitively advanced animals – including human beings – with a long life history, we ought to expect that social learning also influences the emotional responses and expressions. In order to account for individual variations we must avail ourselves of several explanatory models, both biological and cultural, especially when the individual lives a long time in complex social contexts. Nevertheless, we must remember that culture also forms part of an individual’s sense of identity. A lasting culture such as the group’s way of living constitutes a part of the selective pressure both directly upon the group and indirectly on the individual. The social expectations possessed by individuals ought to be linked to the form taken by their internal mental programs with respect to the basic emotional modules. Starting from the definition of integrity as an emotional territory of a somewhat stable character, it is tempting to look upon it as a characteristic feature of the individual, a property that is advantageous to survival and reproduction, as part of the individual’s social equipment. A social expectation presupposes partly that an individual can recognize emotions and behaviour in another individual, something which – as we have seen – primates at least can do, and partly that this individual behaves in a somewhat predictable fashion. With the proposed definition of integrity as an emotional territory a possible starting point is thereby offered for explaining what the concept of “moral integrity” can be thought to be. It is a matter of a property of the individual which corresponds to the social expectation which has been established and has become significant from the viewpoint of evolution in a

70

3 Integrity as Something Worthy of Moral Protection

group of individuals. There is certainly a good bit left to explain what one means by “incorruptibility”, the legal term which is sometimes used to translate ‘moral integrity’. It is, however, an important point to see also in the case of this associated concept that there is a continuity between human beings and other animals. The moral integrity which is associated with a person who keeps his word and does not accept bribes, is related, as regards its psychological basis, to the properties which one finds in individuals with quite other mental and social presuppositions during the course of evolution. Moral integrity can be understood as a basic psychological property which gradually with the help of increasingly advanced cognitive capacities in the individual, and later in the development, with the assistance of social conventions, ideological contributions and moral views, has come to represent a complex property, sufficiently anchored in society for it also to serve as a guide for social life. Like other similarly established social norms which regulate co-operation, tolerance and reconciliation, moral integrity is a character property which is important for the group’s interaction. The focus is on the group which is welded together because social expectation is matched by a predictability in the other party’s behaviour. It is the group which derives an advantage, but as a result the individuals who are members of the group also benefit. Different groups can have different social norms which regulate conduct in life and the degree of exclusivity can vary. If one wishes to seek a basis for moral criticism of the group norms, one must look for support in other moral sources. A group can have a strong moral integrity internally, but its goals and behaviour may be either good or bad, when seen in a wider perspective. It can also be necessary for a society to break up group loyalties so that other interests can work together. Among the questions I shall later return to, are the following: what basis should serve to shape social morality? What characterizes a “person with moral integrity”? And what does respect for integrity at this level means? Integrity is a morally significant property like the capacity to experience pain and to have one’s preferences gratified or frustrated. The individuals who possess this property in some form can be said to constitute a moral community, a community of individuals with the capacities of feeling and acting beings. Faced with such a morally valuable property, there is reason for halting and not entering without good reason. The reasons for violating someone’s integrity must be good ones.

Chapter 4

Respect for the Individual as a Person with Moral and Political Authority – Integrity from a Philosophical Perspective

In accordance with the presentation thus far, integrity can be looked upon as a property which has been developed by individuals living in a society, taking as our starting point the interplay between the three emotions of fear, embarrassment and pride. This emotional territory takes somewhat different forms depending on the challenges individuals and groups of individuals encounter in their natural and social environment. Respect for the individual’s integrity emerges in an interaction with other individuals as a social recognition through different forms of role taking, primarily in terms of dominance and submission. The individuals in the group learn to respond to their own territory and can in certain situations surrender parts of it in order to win advantages together with other individuals. In different cultures it is also reasonable to imagine that different social conventions are established with respect to how individuals view what belongs to the personal and private spheres, and what respect for another individual’s integrity entails. Balancing seclusion and participation is in human culture, as we have seen, strongly dependent upon religious views, moral and political ideals, as well as on practical and economic circumstances. The question to be discussed in this chapter concerns how society ought to respond to the needs of its citizens to defend and protect their private spheres, while simultaneously satisfying their interest in participation. The privacy interest varies from individual to individual. What one individual experiences as a serious violation, can be shrugged off by another individual. Both these individuals ought to be accorded respect for their integrity. The task of finding a balance between the interest of different people in both enjoying seclusion for themselves and participating with others is a moral and political one. A reasonable point of departure is that the individual is to be given insight and the possibility of influencing how the line between the private and public spheres is to be drawn. This accords well with the view of integrity which I have presented. Integrity is something which individuals themselves take care of, an emotional territory which in certain circumstances is fiercely defended and in others is surrendered in order to be able to participate. In a political context there can be reason to regulate when one may and when one may not interfere in the private affairs of citizens. As has already been mentioned, there are also reasons for respecting those who do not have a political voice and to halt outside another individual’s private sphere. The fundamental moral and political M.G. Hansson, The Private Sphere,  C Springer 2008

71

72

4 Respect for the Individual as a Person with Moral and Political Authority

task implies, however, a need to pay attention to individuals’ desires and capacities to dispose over their private sphere, and to participate themselves in deciding how the line between different interests is to be drawn. Individuals with adequate emotional and cognitive capacity ought to be qualified to participate in drawing the line and in balancing between different interests. The focus in this chapter is on individuals’ interest in personally taking charge of their own emotional territory. Respect for integrity implies for individuals with adequate emotional and cognitive capacity a respect for their moral and political authority. Different countries specify differing age limits for when an individual has the right to political influence. In Sweden, the right to vote in a general election is given to people who have reached the age of eighteen. For other situations, a judgement is made of the individual’s emotional and cognitive level of maturity. In Sweden, for example, a 15-year-old has the right to decide on an abortion without the parents having to be informed. Where exactly the boundaries are to be drawn can vary depending upon how social conventions develop and upon various technical advances. However, the procedures adopted in drawing the line and the way in which the individual is involved are of central importance. The view taken of citizens and their right to determine over their own private sphere and to participate in balancing the interests which are at stake in society, are crucial. As shown in Chapter 2, human efforts to create their own emotional territory for private life and simultaneously to participate in the social life outside the private sphere, are interwoven and form a colourful and complex tapestry throughout Western history. The striving for seclusion has gone hand in hand with a struggle for participation and social recognition. Individuals seek to protect their freedom, but it is a freedom which would seem to be empty and meaningless if it cannot be achieved within a social context. The crucial struggle is about the freedom to decide for oneself where the line should be drawn between the individual’s own private sphere and the spheres of community and participation which are a part of the life of the individual as a social being. It has concerned the right to participate in a community on one’s own terms and at the same time be recognized and respected. During the Enlightenment, emphasis was placed on this struggle for freedom, inspired by the writings of Kant and Hegel on individual freedom. They defend both the citizen’s right to participate in drawing up general guidelines and laws in order to decide for themselves and to decide together with others. The aim here is not to provide a historical description of how the respective philosophies of Kant and Hegel developed, nor to give a description of how a respect for human integrity as a respect for their moral standing and a social recognition can be thought to be compatible with their respective philosophical systems as a whole. My intention is much more modest, namely to present with the help of key concepts and lines of thought in Kant and Hegel, a picture of a fundamental perspective which suggests how the interests of citizens can be satisfied, and a description of what respect for integrity can be thought to imply morally and politically. The fundamental idea of the individual’s dual interest in seclusion and participation which has earlier been described from a historical, psychological and evolutionary biological perspective, reappears in this chapter as the object of a philosophical examination. Although the term seclusion seldom occurs in political philosophy,

4.1 Individual Freedom Meaningful First in a Social Context

73

one does encounter the idea of the individual’s interest in a protected sphere, free from interference, where people are free to develop their lives according to their own capacities and ambitions. From a fundamental perspective of non-interference, political philosophers have discussed how individual freedom ought to be weighed against the interests of other individuals, or against public interest. Individuals and the society of which they are part, find themselves in opposition, and according to the dominant viewpoint, respect for individual integrity implies granting individuals a protected zone which is out of bounds to other individuals or authorities, unless they have special legal means. It is a sphere where the individual has the exclusive right of decision. With the help of Kant’s view of autonomy as moral autonomy and starting from Hegel’s view that individual freedom presupposes overcoming seclusion to achieve a relationship with the Other where both recognize each other in a social context, I shall present an alternative view of what respect for integrity implies. Respect for the integrity of the individual means to recognize the dual interest of both being allowed to live one’s life, free from scrutiny and interference and at the same time to participate as a citizen with moral and political authority in a society and make use of the fruits which one together with others is able to create.

4.1 Individual Freedom Meaningful First in a Social Context Kant showed how respect for a human being’s dignity as moral actor is a necessary requirement for dealing with and solving moral conflicts, in a way which takes note of the interests of the different parties involved. To respect a human being is to respect the person as morally responsible and accountable. For Kant this required a capacity for rational consideration which he did not ascribe to animals. The continuity with moral action which has been demonstrated in socially advanced animals by evolutionary psychologists and primatologists was not available to Kant. He sought a system of ethics which can go beyond various group interests and promote that which impartially takes account of all the parties who are morally affected. The precondition for such a system is the existence of agents with moral authority who are able to wish to reason and act according to rational principles, which can serve as guiding principles for everyone. There may still be a continuity between this morality and the development of a private zone for the readiness to act and the capacity to empathize with the interests of other parties in a social context. The universal demand in Kantian morals presupposes, however, an advanced emotional and cognitive capacity for insightful feeling and reflection. The foundation of such a system of ethics is a postulate concerning the individual’s freedom to think and act in accordance with universally valid principles. Hegel largely took the Kantian approach to moral autonomy for granted, but held that the conclusions of a morality founded on the reflections of pure reason are vacuous concepts and provide no guidance in the concrete political and social issues of everyday life. Hegel’s criticism of Kant is not altogether fair. Certainly it is an advance if we can get rid off maxims which in principle presuppose violence,

74

4 Respect for the Individual as a Person with Moral and Political Authority

compulsion or misleading or deceiving other actors. No one would want to choose fraud or deception as a basis for their actions and life, since we cannot will this to be guiding principles which are applicable to everyone. The individual would become an easy target of his own morality. The demand for openness and transparency which follows from Kant’s universalist claims is fundamental for creating the trust which is necessary to bridge the information gap between different actors in modern society. Onora O’Neill has given a clear example by applying Kant’s principles to the biomedical sphere, where a conspicuous feature is the fact that the information which is available to different actors regarding the scientific starting points of various applications and their consequences, differs (O’Neill 2002). It is, however, clear that Hegel goes a step further than Kant. For Hegel, the individual’s freedom and dignity is under attack the whole time. Just as the description of the development of different emotions offered by Leda Cosmides and John Tooby can be understood against the background of the individual’s attempt to deal with a hostile environment, so Hegel’s new approach relative to Kant, can be seen as a revolutionary change of perspective. Hegel’s starting point is not the individual’s independence, but the fact that this independence has been constantly questioned and attacked. History provides many examples of this. Individuals seek to participate in areas outside their own private sphere and attain self-recognition through meeting other people. Human life is a constant struggle for respect and social recognition. Axel Honneth and several others have described this recurring theory in Hegel about a struggle for recognition (Kampf um Anerkennung), even if as we shall see in Honneth, it is a very limited account of Hegel’s theory (Honneth 1992/1996, Williams 1997). In Hegel it is ultimately a struggle for the status of a participant with moral authority in a social context, as a citizen in a society. The communal life of citizens requires in Kant a limitation on individual freedom. In Hegel, on the other hand, freedom as such is only possible in a substantial, embodied and historically situated relationship with other individuals. Hegel constructs a theory about the individual’s freedom so that it presupposes the individual’s sublation (Aufhebung) of this freedom in a relation to the Other in social life (Hegel 1821/1991), hereafter referred to as PR). Human seclusion and independence are in practice worth very little if they are not respected by others and form part of a social community. Human beings cannot be free without realizing goals which are greater than their own and other people’s private needs and goals. In Hegel as in Kant the origin of freedom is to be found in the will, but there is always something that one wills – “I do not merely will – I will something” (PR § 6). There is always something definite which is the content and object of the will. “The laurels of mere willing are dry leaves which have never been green”, says Hegel (PR § 124). In Hegel, the good is freedom which has been achieved (PR § 129) in contrast to Kant where it is at most a question about a limitation of the good which is not consistent with the demand for universality. Certainly Kant suggests that the good which one wills, must be consistent not only with respect for other actors, but that one should also will our own ends as parts of a conceivable unity of ends, that which he calls the kingdom of ends. Hegel, however, approaches things from another angle when he supposes that freedom forms part of a social relationship.

4.1 Individual Freedom Meaningful First in a Social Context

75

In Hegel’s concept of freedom, the Other does not constitute an impediment but rather a prerequisite for achieving freedom (Theunissen 1982, 319). The social context shapes individuals with its continual questioning and individuals participate in the moulding of their freedom by seeking to participate. In a struggle for recognition, individuals strive to win their freedom in what is concrete and substantial (Foreword to PR, 22). The individual’s freedom is therefore always something real and social, embodied and situated in meaningful social environments: freedom is actualized in history (PR § 6). This theory of individual freedom Hegel expounds as a theory of social ethics by showing how freedom is achieved according to the same fundamental idea but in different ways in different social contexts: family/marriage, civil society with guilds and corporations, and, ultimately, in the state (PR § 256). In all these social contexts individuals win respect and maintain themselves by sublating their private sphere. Hegel’s example of the artist is familiar. The worse the artist, the more we perceive him in all his arbitrary, transitory, particularity. There is nothing which lifts thought beyond the particular in the individual. Greatness in art comes about when the artist through a close depiction of the individual manages to lift our thoughts from what is particular and private (PR § 124). Hegel was assuredly a philosopher of his time and influenced the conception of the family, civil society and the state as they appeared at the beginning of the 19th century when, for example, women were entirely excluded from public life. In a similar way, Kant was greatly influenced by his pietistic inheritance – but Hegel’s theory of the individual as a person placed in society and integrated with others extends beyond these temporal horizons. Hegel’s view of the state is indubitably complex and the conclusions drawn in the secondary literature are very mixed. The Hegel interpretation, however, has developed from the view of Hegel as a supporter of the Prussian state to Hegel as a possible defender of the modern constitutional state, a liberal democracy in the modern sense (see D’Hondt 1988). There are without doubt certain passages in Hegel which point in quite another direction. In PR § 100, he states that in certain circumstances the state can demand that its citizens should be sacrificed on its behalf. In contrast to what holds in civil society, it is not the state’s duty to protect unconditionally the life and property of its citizenry. But he was critical of the liberalism which merely contented itself with conserving individual freedom of conscience and dignity, individual freedom and rights. If liberalism does not go beyond this, according to Hegel, one incorporates a potential destruction of the values which one seeks to defend. A central idea, which Hegel develops in the philosophy of right, is that within state, one must sublate what is limited and particular, and incorporate the view of individual freedom in a larger vision where also other individuals and their freedom, goals and relationships form part (PR § 23). Simultaneously every individual must be able to see and be aware of how the institutions of society also take into account the individual’s own needs. Freedom is only possible in a society whose institutions can be recognized as rational by every individual and can provide room for one self. Furthermore individuals must be able to see and to be aware of how social institutions also embrace their own needs. It follows as in Kant that transparency and openness are prerequisites for the trust of the citizenry. The strength of the state

76

4 Respect for the Individual as a Person with Moral and Political Authority

is determined by the constitution, but in real terms it is determined by the degree to which this constitution can form the starting point for individuals’ rights and duties as individuals with particular needs. If the state does not allow particular differences it becomes totalitarian.

4.2 Individual Freedom Exhibited at Different Social Levels Freedom as a personal right is an empty abstraction. If we stand aside from communal life, we are soon bereft of all that is of significance to us. The study of history shows how the human striving for seclusion and simultaneously for participation in society, has taken various forms. The lives of human beings are intimately interwoven, sometimes more than they guess and often without their having a choice in the matter, something which is illustrated rather well by modern genetic research. Individuals achieve freedom only by overcoming themselves in relation to the Other. This is the foundation of Hegel’s conception of freedom and he takes the example of love and friendship to illustrate what he means. In these types of relationship, individuals voluntarily impose limits upon themselves out of concern for the other person involved in the relationship, but are consciously aware that they remain themselves in this relationship (PR § 7). Individual freedom is achieved according to the same fundamental idea but in different ways in the social categories for this freedom: the family, civil society and the state (PR § 256). Within the family, individuals have sublated (aufgehoben) their isolation and view themselves as part of a whole which is bound together by love. Within the framework of the family unit the individual has rights, protection and economic security (PR § 159–160). The immediately defining concepts are according to Hegel marriage where free consent between two individuals forms the legal basis. Children and relatives are brought together in this community without consent. Initially the family represents the highest form of natural morality based on the solidarity which the ties of blood confer, but this community is limited and in Hegel’s account is full of disputes and conflicts over possessions. For Hegel, the new ethical family – based on free consent which is legally guaranteed – is of more importance for the individual’s economic and legal situation than ties of blood (PR § 172). The classical emphasis on a common biological origin is misleading because it does not allow room for a mutual recognition between two parties. Thus according to Roman law, the woman had no share in her husband’s inheritance but legally still belonged to the family she came from (PR § 180). This constitutes a more primitive form of legal system. For Hegel, it is very clear that it is the family as ethical idea, constituted by a marriage based on mutuality and consent, which is the fundamental principle and which ought to be preserved, not kinship or house or family property. For Hegel the significance of the family of origin declines, because the children form new families based on voluntary agreements (PR § 177). This dissolution of families and the forming of new families which relate to one another as external entities constitutes in Hegel the transition from the family to civil society (PR § 181, 238).

4.2 Individual Freedom Exhibited at Different Social Levels

77

Civil society forms the next stage for the individual’s social recognition. It is steered by particular interests of various groups in society and by an increasing need to regulate that, but it is a crude and primitive form of ethical institution designed to satisfy and optimize certain needs, those needs which the system and the prevailing community of values has use of (Williams 1997, 227ff.). At the basic level there are the needs of individuals and protection of property by just legal rules. The protection of particular interests is at this level a common interest which is administered by the public authorities, as well as by the corporations. In Hegel’s system of thought, corporations play the role of a second family (PR § 252). Civil society consists of three components: (i) a system to satisfy the personal needs of individuals and at the same time satisfy the satisfaction of the needs of others, (ii) a protection for the property of individuals by a just legal and political administration and (iii) a concern for the particular as a common interest which is defended by means of the institutions of the welfare state, other public authorities and the corporations (PR § 188). The individual’s abstract needs become meaningful, social needs through social recognition in civil society (PR § 192). The corporation, the guild (esprit de corps) constitutes the transmitting link in order to deal with the unfortunate consequences arising from civil society’s dependence upon self-interest (Williams 1997, 250). By being part of an occupational corps, a trading association, an academy or some other form of corporate body, the individual’s vocation is widened to become something greater than merely a personal sphere of interest. It is the corporation’s welfare which becomes the goal. It is through the corporation’s concern for the particular that the ethical element returns to civil society. Those whose interests and concerns focussed on the particular are no longer exclusively focussed on themselves as individuals. The co-operative corporation forms the second level of ethical life (PR § 255). Civil society, however, according to Hegel’s description acts like a blind wild animal that must be tamed. There is need for an institution to raise the perspective and guarantee welfare for the whole of society. In Hegel, the state is that ethical institution which goes beyond civil society’s limitations. The state must supervise the corporations, for it (civil society) would otherwise become ossified and set in its ways, and decline into a miserable guild system (PR § 255). The family undergoes fragmentation and its members act more and more in their search for mutual social recognition from one another, as if they were self-sufficient individuals, who finally are only held together by the band of mutual utility. Thus they are transposed to the socio-ethical level which characterizes civil society, a level which is illustrated most clearly by the guilds, associations and organizations which are formed on the basis of a common, controlling interest. Given a common interest and mutual utility, the individual’s freedom can be attained but it is, nevertheless, a question of a limited freedom. Certain of the individual’s particular interests are not included and those which do not fulfil the criteria for membership, remain outside. In Hegel’s theory, complete freedom is only attainable at the third socio-ethical level, that of the state. For Hegel the state is not an aggregate of atomistic individuals with particular demands where every individual is isolated, only negatively related to one another, and where different interests are regulated by social contract. For Hegel, it is a

78

4 Respect for the Individual as a Person with Moral and Political Authority

question of a transformation to something greater. Family, corporation and civil society are always limited to their concept of freedom’s empirical coincidences. The strength of the state is determined by the constitution, but in reality also by the degree to which this constitution can form the starting point for individuals’ rights and duties as individuals with particular needs (PR § 258, 261, 265). If the state does not permit the particular differences, it becomes totalitarian (PR § 270). Hegel’s idea of the state entails a constitutional protection against fanaticism and against the totalitarian state where one organization takes over all other relationships. The citizens’ trust also rests on such a constitution which is really realised in the different institutions of the state (PR § 258). The state can change over time and adapt to social conditions and new knowledge, but its fundamental principles remain the same (Winfield 1983, 189). It is first via the state that freedom receives its most concrete and simultaneously universal form. This takes place through a constitution which makes it possible for individuals to look after their own interests, and simultaneously concretely participate in a community where both individuals themselves and all other others have won recognition. The key is mutual recognition (PR § 33). Individual’s are free first when they have won recognition as persons with political authority with insight into and the possibility of influencing the principles and rules which steer life in community with others. It is against this background that we should see the central significance of such freedoms as free speech, freedom of the press and freedom of association. It is also against this background that we shall learn to value the importance of insight in political processes, the implementation of laws and the exercise of authority. It is these freedoms and this openness which the state constitution must defend. For individuals, it is more about sublating what is their own, the particular, we should say the private perspective, rather like the superior artist. There is always a risk that human beings in their efforts to improve the world and in spite of their good intentions become oppressors, because their perspective is far too limited. Hegel launches an attack on orthodox liberalism in order to defend its ideas against itself and make it real.

4.3 A New Approach to Self-Determination Respect for people’s right to self-determination has become something of a decorative slogan in modern times. It is confirmed in law in the Swedish Health and Medical Services Act and regularly recurs in many of the ethical guidelines which set out to regulate medical research. Patients have the right to decide whether they participate in a certain medical treatment and persons who are asked if they will participate in research have the right to make their own minds up about it, and give some kind of informed consent. In the conventions and preparatory work leading to legislation about the use of human biological material for research (see the Council of Europe’s Convention on Biomedicine and Human Rights and the Swedish Biobanks Act) it seems however, that the view taken of the tissue donor’s autonomy

4.3 A New Approach to Self-Determination

79

and right to self-determination has been largely shaped by a political concept which basically derives from the ancient world. In ancient Greece, autonomy was a political concept which emphasized independence, with the Greek City State as a model. People were autonomous when they took charge of their own affairs and were protected from external interference, even if its price was isolation from other people and from the world around. It was first with Kant that autonomy was defined as a moral concept. Respect for people’s autonomy, according to Kant, entails a respect for their capacity to participate in the formulation of the moral principles which every human being would wish to endorse. In this sense, human beings are self-legislators, but it is a question of laws and rules with, in principle, a universal sphere of application (Kant 1785/1965). Self-determination in accordance with the Kantian tradition thus involves taking account of the well-being of others through a judgement of how our own decisions affect other people’s ability (i) to act in a morally responsible way and (ii) to attain their own goals. The first requirement Kant expressed in his formulation of the categorical imperative that we ought never to treat humanity, whether in other people or in ourselves, pure and simply as a means towards our own ends (ibid.). The other demand is expressed in a formulation of the categorical imperative to the effect that we should so will that our own ends can be thought to be a part of a unity composed also of the ends of the actions of other people (ibid.). Through imposing the moral demand to act in accordance with such rational principles of action, which can serve as guiding principles for everyone, Kant has, in his concept of self-determination, incorporated an intersubjectivity. Already in Kant’s moral philosophy, we encounter a fundamental change of perspective from subjective to intersubjectively based self-determination. It is with Kant’s limited perspective a question only of a reorientation at a theoretical level, but as we noted earlier, this can still be of considerable practical worth. With a starting point in Hegel’s moral philosophy, this reorientation with respect to the concept of autonomy and self-determination, becomes still more accentuated. Hegel and Kant are close to one another in the development of autonomy as a moral concept, but for Hegel our fellow human beings in various social contexts, referred to collectively “the Other”, are already involved in our own selfimage. In Hegel the subject’s freedom is only possible as something determined in a substantial, embodied, realized, historically situated relationship together with the other subjects (PR §§ 29, 126). It is a question of an intersubjectivity between selfunderstanding beings that participate in a social context of mutual recognition. The self-understanding is “doubled” according to Hegel (Hegel 1807/1994). According to Ludwig Siep’s interpretation, Hegel’s pronouncement does not imply that it is a question of two self-understanding beings that relate to one another like two objects influencing each other or like two forces which interact with one another (Williams 1997, 51). The mutual relationship between the two self-understanding subjects transcends this type of relationship, because for both parties the Other already forms a part of the image one has of oneself. Both are dependent, not only upon their relationship with the Other, but also upon the other person’s self-understanding. A friend undergoes a change when the other person in the relationship changes,

80

4 Respect for the Individual as a Person with Moral and Political Authority

and a child changes when the adult members of the family acquire a new view of themselves. Intersubjectivity implies a dialectic in the sense that each of the two parties embodies the whole relationship. The subject is formed in mutual social recognition (see Düsing 1990).

4.4 Social Recognition: From Separation to Participation Robert Williams has pointed out how Hegel in The Phenomenology of the Spirit develops the negative aspects of this social recognition process, the aspects which threaten to destroy one’s own self-image and which primarily generates a resistance (Williams 1997, 69–70). The relation between the subjects is characterized by denial, violence and situations where the one party tries to compel or mislead the other. There is nothing here that is akin to mutual recognition. Nevertheless, the negative resistance which a subject encounters helps to fashion that subject’s self-image. In the hostile world around, resistance is born and a will to fight for recognition from the other. In this struggle the subject’s self image as the person who has survived, sublated and appropriated a social living space, is generated. The Other constitutes certainly an element in this self-image, but only as someone who must be coldly reckoned with, watched and kept pace with. Hegel takes the relationship between the slave and his master as an example of a first stage in reaching a mutual relationship which arises in the struggle against the other’s denial of recognition. Williams has pointed to this difference in the Hegelian conception of this relationship in the Phenomenology of the Spirit compared with that in The Encyclopaedia of the Philosophical Sciences which was published later (Williams 1997, 77). Thus initially, Hegel looks upon this relation as an abstract form of the sublation of violence and death. The master’s triumph over the slave and the latter’s submission and recognition of the former as his master brings the violence which would have led to a cruel execution to an end. But the relationship which is established, is one-sided. It implies certainly that the violence ceases, but instead compulsion is institutionalized in the form of a fundamental inequality, the dominance of one and the oppression of the other. The relationship between the master and slave is one-sided and thus contains the seed to its own destruction and collapse. Charles Taylor has described slavery’s classic result: “Before it leads to death, one of the sides surrenders, recognizes his tie to life and submits to the other. The victor spares the vanquished in order to make him a slave. Both of the chief actors thus preserve their lives but in a very different way. The victor has won his cause, what is important for him in his being-for-himself, namely his own self-awareness, that life is important for him, that life is something subsidiary. For the slave, however, it is life which is important and his self-awareness must now submit to an outer existence which is beyond his control” (Taylor 1975/1986, 198). In the Encyclopaedia of the Philosophical Sciences, as Williams points out, Hegel’s view of the relation between master and slave undergoes a change. Hegel now describes it as a relatively just, transitional stage in humanity’s path of

4.4 Social Recognition: From Separation to Participation

81

development from a state of nature to an ethical life. It is undoubtedly a miserable institution, but nevertheless it is better than pure slaughter. It has, nevertheless, the obvious limitation that the mutual recognition is an operation which must be undertaken together; one cannot force oneself to this recognition. The relationship master–slave is one-sided and thus contains the seeds of its own destruction. It is not only the oppressor who is guilty. If someone is a slave then his own will is responsible. “Thus the wrong of slavery is the fault not only of those who enslave or subjugate people, but of the slaves and subjugated themselves” (PR § 57). A more constructive picture of social recognition as a process towards greater participation emerges, according to Williams, in Hegel’s Encyclopaedia of the Philosophical Sciences. In this work Hegel places the emphasis on the elements of confirmation and affirmation, which are also involved in the mutual recognition between two subjects. The Other does not simply constitute an impediment or an anonymous piece in a game about one’s own personal welfare, where the individual tries to secure his own private interests. The Other is also an autonomous being, someone who plainly has a life outside of this relationship. Moreover, there would also seem to be common goals where both have something to win from participating with the other. There is reason to combine and co-operate at least in some matters. There is also in this process of mutual recognition an aspect of sublating one’s own limited perspective, challenged by the insufficiency in one’s personal seclusion, and perhaps by the risk which is associated with a self-sufficient life. The mutual recognition involves, as a stage in the process, a liberation of the individual from his own self, from his own limited perspective, his rigid protection of his own existence and personal integrity. But since the relationship is characterized by a mutual recognition, there is also involved a liberation of the Other. The subject allows the Other to be free. Hegel’s term is freilassen, to release. This relationship is possible, only when the cramp surrounding one’s own private sphere has been released. The Other simultaneously also experiences release, but both remain in a relationship of mutual respect. The individual surrenders his integrity in this limited sense and wins respect for his integrity as a participating individual whose fate is bound up with that of the Other. Perhaps the mature adult relationship which parents and their children can experience together would serve as an illustration. To let people go and still preserve the relationship. It is a question of sublating the relationship of master-slave so that both together then achieve mutual liberation. Hegel’s idea of intersubjectivity goes beyond theories about the “decentring” of the subject as presented by several postmodern ethicists. Their view of the subject leads to the encounter with the suffering fellow human being’s challenging provocation to moral awakening and moral responsibility. This is especially clear in the case of Emmanuel Levinas and Paul Ricoeur (Levinas 1975/1994, Ricoeur 1992). In the case of Hegel, it is, however, a question of a transformation of the subject to a potential intersubjective ethical partner. Becoming receptive to the Other’s needs and not forever insisting on personal needs and rights, is not the result, in Hegel, of an extension which begins in the subject himself as the notion of decentring presupposes. As Williams has pointed out, it is crucial for Hegel that it is the Other who brings about this transformation (self-othering) of the subject (Williams 1997, 54).

82

4 Respect for the Individual as a Person with Moral and Political Authority

It is a question of a mutual recognition which entails that the one subject ceases to dominate the other and enables a development of an ethical life from slavery to the constitutional state to take place. The struggle for recognition follows both the path of denial and the path of confirmation: to be recognized as an independent, free individual but also a struggle to overcome raw, uncultivated particularism where the individual is solely interested in satisfying his or her own needs. Autonomy and self-determination are not immediate, but are conferred in this struggle. In Hegel’s thought, self determination is not present at the beginning but emerges as the result of a process where the Other is deeply involved. Hegel speaks of Anderssein, the awareness of the Other as someone else (Williams 1997, 70–71). This awareness arises at the end of a conscious process between two selves which are still separate, but are identical in being “the Other” for each other. There is a powerful liberating element in this consciousness that it is possible for both parties in a mutual relation to come to the insight that both parties are “the Other”, different but simultaneously a part of a mutual relationship. The Other is necessary for the awareness of a real difference/dissimilarity and that self-awareness and freedom rest upon this insight into this dissimilarity. Without the dissimilarities, self-awareness, autonomy and freedom are merely abstractions. Hegel’s path to a differentiated reality where human dissimilarities have a place, goes via mutual recognition; the Other must be confirmed and allowed to be different. Self-determination in Hegel is brought about by recognition as a social, historically situated process. In Siep’s terminology, autonomy is initially social (Siep 1992). The working out of legal protection for self-determination and integrity which does not simultaneously do justice to both the subject’s independence and the individuals’ dependence on one another, is typical of a society which in the Hegelian sense, stands at the threshold to the ethical life. In Kant respect for human beings is based on their similarity: of being human, possessing reason, of being able to reason and solve moral problems in accordance with rational principles. For Kant, autonomy does not mean being independent of others, but rather preserving oneself from accepting other grounds than those which are dictated by one’s own reason. It is a matter of evading heteronomy. The universally valid is achieved through this, as does equal moral status for all parties. Moral relativism can thus be avoided, but it is achieved at the price of a genuine incapacity to appreciate differences and an escape from the challenge to personal self-image which arises in the encounter with the Other. As a result, experience of the social game as a shared project, whether in the case of the family or the larger society, is lacking.

4.5 Respect for Integrity as Social Recognition The struggle for social recognition runs like a scarlet thread through Hegel’s social ethics. In a mutual release (Freigabe), every individual’s special needs and interests are respected while at the same time the individual sublates his own limited perspective. There is an inner dynamic in the social forms for living together, where

4.5 Respect for Integrity as Social Recognition

83

the individual finds his own self respect and self estimation nourished by the recognition he receives from others. Axel Honneth has said that life, according to Hegel, must “. . .be regarded not as the result of the mutual restriction of private spheres of liberty, but rather the other way around, namely as the opportunity for the fulfilment of every single individual’s freedom. . . [and] neither laws prescribed by the state nor the moral convictions of isolated subjects but only attitudes that are actually acted out intersubjectively can provide a sound basis for the exercise of that extended freedom” (Honneth 1992/1995, 13). Hegel described his three types of social relations – the family, civil society and the constitutional state as models for a corresponding number of ethical relations pertaining to intercourse among human beings. These represent for Hegel different levels in a development, where it is first at the third ethical level where individuals interact with one another in such a way that both sides safeguard everybody’s particular interests and make everyone participants by virtue of the fact that the one’s freedom in mutual recognition presupposes release also by the Other. Given his metaphysical allusions, it is easy to interpret Hegel to mean that these levels form part of an inevitable historical development in the human organization of society. It is possible and perhaps even probable that he entertained such a thought. Quite independently of this metaphysic there remains the insight into a social ethics where the individual is related to other subjects in different social spheres. Family ethics suffices for the family and the ethics of civil society are sufficient for the needs of co-ordination and participation which are subordinated to a shared group interest and shared values. For communal life which extends beyond these social relations, the citizens devise an ethic by means of a system of law which guarantees everyone insight and influence. For Axel Honneth, however, it is a question not of ethical relations of this kind, but of three stages in the development of the individual’s own awareness and self image (ibid., 29). He is primarily concerned with the development of individual self awareness and the process whereby individuals are integrated into a social community. Honneth’s socio-psychological interpretation of Hegel takes as its starting point George Herbert Mead’s anthropology where the ego is made up of a human quality which induces people to react and resist outside interference. Initially it is an unconscious, antisocial impulse spurred on by basic physical needs, but through the experience of social interactions, a new identity emerges. “The unconscious impulses to action direct in an unarticulated way the whole of our conscious life by, so to speak, affectively commentating on our actual behaviour in the form of experiences of displeasure or feelings of agreement” (Honneth 2000/2003, 164). Through these denying and confirming forms of recognition, the individual’s relation to himself develops and the demand to be recognized carries the individual further through various intersubjective conflicts to establish additional spheres of recognition. The development of human self awareness is dependent on experiences of violation and social recognition. In his later work Honneth has changed his focus and now derives inspiration for his social psychological model from Donald W. Winnicott’s psychological teachings (Honneth 2000/2003, 2002). The infant’s early experiences of a symbiotic relation to

84

4 Respect for the Individual as a Person with Moral and Political Authority

the mother lives on in the adult human being as an unconscious impulse of striving to be independent and at the same time to be confirmed and recognized. The unconscious is “that in the human personality which carries the responsibility for all impulsive and creative behavioural reactions, without being able any time to emerge consciously as such” (ibid., 163). From this unconsciousness, according to Honneth, flows the psychical energy which through the experience of different spheres of recognition forms the basis of the individual’s moral capacity. Fundamentally it is really a matter of an antisocial impulse. Early childhood experiences influence human beings through the whole of their lives by impelling them again and again to revolt against experiences of not having the opposite number, the Other, at their own disposal (Honneth 2002, 504). Different types of violation give rise to different degrees of psychological damage and disturbance of a person’s self image. Honneth distinguishes between three levels which according to his interpretation correspond to Hegel’s three levels of intersubjective recognition: family, civil society and the state (Honneth 2000/2003, 99ff.). The first and most elementary level is the form of violation which deprives people of their own physical well-being. As examples, he gives various forms of physical assault, torture, rape and ultimately murder. It is not the physical pain in itself which causes the experience of moral violation in these cases, but the insight that one is not recognized. Individuals no longer feel safe that their own physical needs are also valuable in the eyes of others. As a result, their self-confidence is injured. At the second level, the violation implies an attack on the individual’s self esteem as a morally responsible person. As an illustration of this type of moral violation, Honneth cites experiences of treachery and fraud and also social groups who consider themselves neglected in the eyes of the law or discriminated. The experience of this kind of disrespect implies that the individual can no longer feel confident that others recognize the value of their ability to judge. At the third level, people’s experience of their own value is violated. It is a question of violations when one or more people, through humiliation or lack of respect, are made to feel that their own capacities are not up to things and that they lack social importance in the community of values to which they belong. The typical examples in Honneth’s list range from fairly harmless cases of failing to notice and greet someone, to cases of gross stigmatization. According to Honneth the moral violation is experienced “more deeply the more elementary the self-relation is, that is violated or destroyed” (ibid., 100). In analogy with his view of how moral violation is based upon the experience of recognition that is withdrawn or refused, Honneth sees the moral attitude as a fruit of sublating this violation into the exercise of an actual recognition. Morality arises from the impulse to protect the intersubjective conditions which make it possible for individuals to feel secure and retain their own self image. Given this way of looking at things, the moral obligation follows from the social relation at hand. It is a question of three different forms of social recognition which, taken together, according to Honneth, have the function of protecting the individual’s personal integrity. A violation of only one aspect of the tripartite self-image does not imply a threat to integrity. To respect someone’s integrity means “to perform actions, accept responsibility or

4.5 Respect for Integrity as Social Recognition

85

adopt the attitudes which make it possible for this person to develop a corresponding self-understanding” (ibid., 108). Recognition at the first level corresponds to obligations of emotional concern. At the second level, obligations for treating people equally arise, and at the third level, we find “mutual obligations to joint interest and participation which embrace all members of the community of values in question” (ibid., 109). It should be observed that when Honneth speaks of the third level, he is actually dealing with a level which corresponds to Hegel’s second level for ethical relations, because it is about a recognition which is restricted to the community of values shared by one and the same group of individuals. Honneth is critical of the metaphysical superstructure in the early Hegel and tries instead with an empirical social psychology of the type described. With the help of Mead’s anthropology and the teachings of psychoanalysis, he constructs a theory about how human beings develop a moral self-understanding, and indicates also how specific ethical norms can be thought to arise. These norms arise “by way of the morally motivated struggles of social groups – their collective attempt to establish, institutionally and culturally, expanded forms of reciprocal recognition. . .” (Honneth 1992/1995, 93). The driving force in this ethical development is made up of mental energy which unconsciously drives people to protect their self confidence, their self-esteem and the way they experience their own worth in a community of values. There is according to this social psychological model, an internal connection between morality and recognition, between human moral attitudes and human striving for recognition. According to Honneth, this idea also implicitly contains a basis for a social critique of various aspects of society inasmuch that it is preferable to have society so ordered as to allow for the individual’s self realization. In his later work, he has proposed a normative yardstick which would allow one to measure the level of moral development in a society (ibid.). Moral progress is determined according to this idea, by the extent to which the social order allows more room for individuals’ own striving and the number of individuals who are socially included. However, as Honneth points out, there are significant unsolved problems associated with combining anthropological speculations about antisocial human tendencies with normative claims that certain norms for social recognition are better than others. There may be a similarity with Hegel’s early view during the Jena period of how morality acquires its actual historical effect – Honneth sees it as a kind of historical learning process where the fruits of learning are embodied in social institutions and norms – but it does not fit in well with how Hegel in his later work on the phenomenology of spirit and philosophy of rights, describes the morality of social recognition as a social ethical theory where human beings have to master various types of ethical relationships. By emphasizing the role of the unconscious, Honneth has succumbed to attempts to falsification in a way which allows the same kind of criticism that he directs at Hegel. Honneth’s social psychological interpretation of Hegel is not easily accommodated with the social ethics which is developed in particular in Hegel’s later, postJena work. In Hegel, it is never a question of describing how human beings’ moral self-development is forced increasingly to take account of the hidden impulses of the

86

4 Respect for the Individual as a Person with Moral and Political Authority

subconscious or unconscious. Nor is there some inexorable historical development which goes in a predetermined direction with the help of some collective force which is outside the control of particular individuals. Hegel’s system of ethics, like Kant’s, constitutes a rational project where he assumes and appeals to human reason and will, as the origin of freedom (PR §§ 4–17). Just as in Kant, the issue is how far we can rationally will something without landing in internal contradictions with respect to the various different motives and actions which are compatible with one another, and with respect to what is compatible if others act in a similar way. The difference is that for Hegel, the moral will is always historically situated. The pure will may exist as a mental construction, but it is never present in a moral project. The will has an object: there is always something we will. As a result, we find in Hegel, in contrast to Kant, an interest in this object’s social and historical context. Consequently, it is inevitable also that different wills can either conflict with, or confirm one another. One necessarily comes to look upon what is morally valuable and the conflict between values in the light of different socially and historically determined perspectives. At the same time, we perceive that our own will cannot be the centre of the universe, even if it is always prominent. There must always be others who look upon things from another perspective but – and this is the precondition – who also share the hope of finding a solution on the basis of rational reflection. Hegel’s starting point is an appeal to rational people’s will and insight that our social life together with other people who neither share the same family history, nor the same community of values, presupposes that we sublate the particular in such a way that the differences between us are still respected. This is also the point of departure for a theory of integrity which does not focus primarily on family ethics or on specially selected groups, but sets out to explain what form a system of law for society at large should take, in order that individuals can both retain and sublate their own personal perspectives, remain in peace and simultaneously participate. This is not possible without being related to the Other. Hegel’s principal ethical question concerns the form that this relationship should take at a social level. The private sphere must not be made into a yardstick for the public exercise of power through legislation and public authorities, but the public sphere must always respect that there is a private sphere which is beyond their reach.

4.6 The Individual as a Person with Moral and Political Authority The question of the extent to which Hegel leaves individuals room to assume their own moral responsibility with the right and scope to remain critically disposed towards the overall social order in the form of the state, has been discussed in great detail in the secondary literature. Ludwig Siep addresses a criticism of Ernst Tugendhat to the effect that, according to Hegel, the state’s legislation has an absolute authority, and therefore the individual has no more to do than fit in with the order which has been determined by the community as a whole (Siep 1983). The starting

4.6 The Individual as a Person with Moral and Political Authority

87

point for this interpretation is Hegel’s use of the term Aufhebung to describe the transition between the different ethical levels. It is assuredly in Hegel an idea that morality must be replaced by, and must necessarily undergo a transition to an ethical level, an idea that can serve as a basis for the criticism made by Tugendhat and others. Hegel starts from a very basic concept of morality where it is taken to be the same as the subjective perspective, the subjective will, which nevertheless extends beyond behaviour, based on raw instincts (PR § 108, 112). This subjective morality must, according to Hegel be replaced or suppressed by a morality which is able to take note of the subject’s necessary position within an intersubjective framework. The question is then what remains of the subject’s own perspective. The criticism has, however, missed the central point of Hegel’s comments on the subject’s will, when compared with what Kant has to say, namely that the will is always directed at an object. As Siep points out, there is always an interest associated with an expression of will, an interest that fundamentally is about the individual’s self-realization (Siep 1982, 261ff., 1983, 140). Individuals carry about with them personal needs, inclinations and passions in a realization which necessarily is also socially situated (PR § 123). The question for Hegel and his critics is how the individual’s self realization can simultaneously be combined with an ambition to organize society with rights and duties which apply to all. What is revoked and what remains of the individual’s perspective in the transition from family morality to society’s ethics in the transformation process leading to an ethical system which can embrace everyone? In order to see Hegel’s answer to this question one must first appreciate that the ethical system which represents the third, higher level is not first and foremost a system of rules by means of which different interests can be co-ordinated and conflicts of interest resolved. Instead, the ethical life’s system is to be looked upon as “a self-developing, common selfcomprehension (a ‘spirit’) that can be incorporated in institutions and persons” (Siep 1983, 146). This idea reminds one of what is meant when one speaks about the spirit of the law. The spirit of the law precedes the formulation of a legal rule and serves as a guide for its application in the actual practice of law. All particular interests are accommodated and every such interest can be said to represent the system, as a part of the common self-comprehension, but the totality must simultaneously exists in itself, and should not in its attempt to defend the particular, be broken asunder by various individuals’ opinions at a given moment and by their subjective interests. In the name of the spirit of the law, the individual is thus able to criticize both particular rules of law and their application within the public institutions of society. With the same motive as ground, the system is also able to defend itself. Trust in the state which Tugendhat saw merely as a form of the individual’s exhaustion when one has neither insight nor influence, becomes in fact in Hegel a critical relationship between the individual and the totality he is part of. Trust in the rules and institutions of society arises in a process of reflection, where the individual tests to see if the system has rational grounds and can be supported with adequate knowledge (PR § 147 and Siep 1983, 146–147). The critical interaction between the citizen and social institutions occurs consciously, openly and is articulated so that everyone will be able to critically examine if a system is just, and takes note

88

4 Respect for the Individual as a Person with Moral and Political Authority

of the particular interests of individuals. It is not a matter of a blind faith in every law and measure which the government implements, but is instead a trust that there is a substantial connection between the interests of the state and the interests of the individual. Given this trust, open, critical and well-informed scrutiny is self-evident. The actual rules, which are established in law, do not come about through a theoretical deduction which must then be applied in practice. The rules must be drawn up on the basis of a social praxis where different particular interests are de facto expressed in critical and insightful rational examination. If the individuals are not assigned the capacity of being able to reflect and criticize this praxis, they cannot then look upon it as something which is “maintained and reproduced only through their consciousness and action” (Walton 1983, 79). The social context ceases to be a part of their praxis. Full moral self-realization, according to Hegel, is achieved first at the level of the autonomous constitutional state, but as Ludwig Siep points out, the individual does not therefore cease to be a private, moral religious individual with special duties to the family, his professional colleagues and those interest groups to which he belongs (ibid., 153, see also Winfield 1983, 189).

4.7 Participating with Knowledge, Insight and Influence With the support of Kant and Hegel respect for integrity, as it is framed in a society’s legal system and expressed in its various institutions and system of rules, ought to do justice to both the human search for seclusion and participation. Above all, however, it must allow individuals to have a decisive influence on where they themselves wish to stand in the tussle between the desire for seclusion and the desire to participate. Respect for integrity implies a social recognition of the boundary chosen by the individual to protect what is private from public insight and invasion. It also entails a respect for individual’s status as a person with moral authority, and a social recognition of the individual’s participation along with others as an actor possessing political authority. It is a question of a social recognition, in other words something which is to be found in our way of conducting ourselves in our intercourse with others and in social conventions as well as in legislation, in the application of laws by relevant supervisory authorities, in the legal deliberations and judgements of courts and by boards appointed to assess the ethical implications of research. Respect for integrity should be expressed in the everyday life of society and politics. Children who are not legally competent by virtue of their age deserve the respect for integrity which is possessed by all social beings. One must halt before entering the private sphere of the child. The child’s integrity must not be violated without good reason. When they attain the maturity which is required for a politically active participation in social life with insight and influence over political choices, they enjoy the same respect as all other citizens. Respect for integrity as social recognition also implies a respect for the individual’s will and capacity to see beyond their own special interests in interaction with others, where just what is special for both the individual and the others are

4.7 Participating with Knowledge, Insight and Influence

89

both taken into account. From this, there follows a demand for openness and transparency concerning the principles and motives which drive social institutions, and an insight into how power is assigned to, and exercised by, various bodies. This openness is a prerequisite for ensuring that integrity is protected and forms the basis of the citizens’ trust in the institutions of public life. Openness is also necessary so that people are willing to make sacrifices for something that is bigger. Respect for integrity as social recognition implies a confirmation of the Other, but thus also presupposes knowledge about the Other and the Other’s conditions of life. We cannot recognize or respect what we do not know. Hegel formulates this at the end of his discourse on the Philosophy of Rights as follows: “The principle of the modern world requires that whatever is to be recognized by everyone must be seen by everyone as entitled to such recognition” (PR § 317). Freigabe as the recognition of the Other as another subject also presupposes a knowledge of the Other which can be the basis for – or be included in – public life; it does not involve a knowledge of private matters or the family’s own business which are of no concern to others. Through the construction of various social structures and institutions, one has the possibility of reaching a rational balance between different interests, a balance that can in principle be approved by everyone. For this to be, it is necessary that there is a possibility of insight into, and criticism of, how this balance is reached, which values take precedence and how different objectives are to be pursued in practice so that they do not place other important goals at risk. The idea of respect for integrity, as it is developed with the help of Kant and Hegel is neither based on social psychology nor on biology. Respect for the moral and political authority of the individual has a rational ground, given the individual’s dual interest in seclusion and influence. Given the compelling need to protect one’s own emotional territory, one’s private sphere, there is reason for halting in the encounter with another person, or when another individual’s interest is involved. However, we must go further and reflect about how the balance between different interests is struck. This is the issue to be discussed in the next two chapters, first of all by examining the various proposals of moral philosophy and subsequently the solutions offered in jurisprudence and the law.

Chapter 5

Balancing Seclusion and Participation – Integrity from the Perspective of Moral Philosophy

According to our discussion thus far, integrity can be described as a fundamental property which is to be found in all beings with some kind of social life. As such, it is a universal phenomenon, given a certain basic mental capacity. The emotional territory has developed in an evolutionary process of adaptation, where individuals have had to deal with various challenges depending on their environments. This environmental variation provides a theoretical basis for explaining variations in individuals’ reactions. One can also expect reactions which are not caused by any actual threat but which depend on a response pattern which was established in the brain at an earlier stage of evolution. Individuals live with an evolutionary memory which entails that it should be possible to spot in human beings reaction patterns similar those to be found in other primates but also in other kinds of animal. The interaction in the emotional territory between the three emotions of fear, embarrassment and pride ought to vary between different species and between different individuals depending on the individuals’ mental capacities and their differing social conditions. An interesting question for the theoretical development and something which research into the emotions should be in a position to answer, is how this interaction works in practice, relative to different social challenges. It is possible to imagine a stimulus which is directed at the capacity to experience embarrassment, but which indirectly affects the responses associated with fear. Nor is it hard to imagine an influence in the other direction, something which a person who has been scared or who has tried to scare someone else, has probably experienced. Children who have been scared by someone react with fear as if confronted with a real external threat, but at the same time they are embarrassed. Elements of pride can also be noticed when a child is a little older. To scare people in this way implies a violation of their integrity. Whether this is morally reprehensible or not depends inter alia on whether the individual has consented to be subjected to this emotional influence or not. To watch over our emotional territory and thereby protect our private sphere has considerable survival value for the individual. The emotional territory provides individuals with the possibility of interpreting the world around from their own place, allowing them to judge potential external threats. Within their private sphere individuals can retreat to a safe place, lick their wounds, recover their strength and develop new perspectives about the world about them, by interpreting the interaction between the different emotions, in relation to that which happened in the world M.G. Hansson, The Private Sphere,  C Springer 2008

91

92

5 Balancing Seclusion and Participation

about. Depending on their cognitive capacities, they can also rationally process their reactions. As a developed property, integrity has great value for the individual’s survival as a social being, but it is also socially significant because it includes the capacity to act as a result of a somewhat complex mental activity. The reaction to a violation of integrity does not follow a simple stimulus-response pattern, not even in the case of such a fundamental emotion as fear. This complex behavioural capacity plays an important role in social interaction with other individuals. Given this, the protection and preservation of integrity is important for the individual, and thus integrity in this light deserves to be treated as something morally worthy of protection, something that should not be violated without good reason. The individual’s emotional territory is a vital part of its social equipment. It has been formed to deal with different challenges or threats, both in the natural and social environment. Via their territory, individuals interact with the surrounding world. Basically therefore integrity is a social property. In analogy with this, one can regard the individual’s private sphere as something socially important. Via their private sphere, individuals establish various types of relations with other individuals. Some are turned back at the gate, some come into the entrance hall, while others are conducted via the Roman colonnades, and at length reach the private apartment. There can be reasons for retiring and the need for seclusion varies, but common to all private persons, is the possibility of participation in social life. It is not what is private in itself which is at stake, but rather the role of the private sphere in a social relationship. Given this, there is reason to reject a one-sided justification of the protection of the private sphere in terms of non-interference. In considering this matter, weight must also be given to respect for the individual as a person with moral and political authority. The ethical and legal analyses seem primarily to have been concerned with people’s interest in having a protected sphere surrounding their own private lives. To the extent that one has been interested in the concept of integrity in the wider sense that I have introduced, it has been primarily from a teleological perspective or else in the Swedish context, one has simply translated the English word privacy by integritet (Westregård 2002). There is also some discussion of what can be thought to constitute a “person of (great) integrity”. I shall return to this latter question in Chapter 7. It is often taken for granted that the interest in protecting one’s private life from external insight and intrusion is one of those aims which a liberal society ought to underwrite. Why it is of pressing interest has not been considered to need further investigation. The turning point in the legal discussion came with the influential article by Samuel D. Warren and Louis D. Brandeis on the right to a private life which appeared in the Harvard Law Review in 1890. In this article, as in many subsequent writings dealing with it, the main question has been how one can devise such a supposed right within the framework of other constitutional rights. I shall return to the judicial conception of the right to a protected private sphere and integrity in the next chapter. The discussion of this topic in moral philosophy was stimulated in 1975 by Judith Jarvis Thomson’s article in Philosophy and Public Affairs on the right to a private life (Thomson 1975). Like many others, Thomson bases her case in large measure on the legal conception, by taking the interest in having a protected private life for granted, without more precisely analysing why this is socially or

5 Balancing Seclusion and Participation

93

morally important. Her thesis is that the right to a protected private life can be traced back to other personal and civil rights, and adds no new protection. However, by not assigning the private sphere a special value, she has induced several people, who look upon her failure to do so, as a weakness and have, as a result, argued for such a value in various ways. In this chapter, I shall comment on some of this discussion. Hitherto, however, the discussion has only been concerned with the interest in a private sphere as such. Individuals have been taken to have an interest in a protected zone, free from insight and where one can be left in peace from the intrusion of other private subjects. It is a domain which is inaccessible both to media’s interpretation of public interest and the measures of public authorities in the discharge of their duties. Such a perspective, however, about what is at stake fails to note an important point. Both from the viewpoint of evolutionary psychology and history, it is not the private sphere as such which is at stake, but the possibility of having at one’s disposal a socially situated territory where one can relate to, and interact with, the surrounding world in a fruitful way. The access to a secret sphere which is barred to others can form part of this territory, but one’s interest extends beyond this. For reasons of survival, individuals have a basic interest in simultaneously enjoying seclusion and participating in a social context. The interest in protecting one’s integrity thus includes an interest in a private sphere. The study of history shows how people in different cultures and in different ways have sought to protect this dual interest. Whoever looks for a general criterion for what is private which is applicable to all people and cultures, is unlikely to be successful. As we have seen, there is great variation in defining what is private, and the conclusion which many draw from this fact is that protection for private life cannot be given a more secure basis than the one which is given by social conventions determined by material circumstances (see Weinreb 2000). There is no underlying interest which can serve as a guide for a common way of looking at things or for the criticism of various cultural manifestations. Such a conclusion is not, however, compatible with the insight which emerges from the study of various cultural variations, that individuals in differing societies and at different times have sought to protect and promote their interests, both in being left in peace and at the same time in participating in society. It is the interest in integrity which unites all social beings and the possibility of influencing the form which the relationships in our lives are to take. The interest in the protection of private life is subordinate to the interest in integrity. It is still possible and important to define where the line is to be drawn between what is private and what is public and social conventions would seem to yield different results in this matter. New circumstances such as the technical development of methods for insight and surveillance, as well as new opportunities for the developing of welfare, necessitates a constant review of the situation. This boundary can be adjusted to take account of other values at stake which are important for the individual and society, but this must be done bearing in mind the fundamental respect for the individual’s integrity as something which is completely socially recognized. In human contexts, this includes respect for the moral authority of the individual and for the political authority of every member of society.

94

5 Balancing Seclusion and Participation

5.1 Is the Protection of Private Life Adequately Covered by Other Rights? Judith Jarvis Thomson has maintained that there is no ground for a special right to the protection of private life (Thomson 1975). Such a presumed right always reduces to other rights, above all to the rights of property and certain rights which the individual has with respect to disposing over his own body and person. Among these, according to Thomson, is that one should not be exposed to the unauthorized interception of communications or surveillance. In many cases one intentionally or unintentionally surrenders these rights which then means that anyone who chances to hear or see something of another person’s private affairs cannot be said to violate the right to privacy which that person otherwise enjoys. The married couple who quarrel at the top of their voices with the window open could have protected themselves from insight by lowering their voices or shutting the window. If they did not do so, according to Thomson, they have forfeited their right. If they take these precautions to protect themselves and some outsider creeps close to eavesdrop or uses some form of eavesdropping equipment to gain insight into their personal matters, then a violation of their personal rights, and possibly also of their property and disposition rights, occurs. It is certainly so that a person who stands on the street and listens in, is not being particularly well-behaved, but according to Thomson, a line has to be drawn between what can be looked upon as bad behaviour and what constitutes a violation of someone’s rights. In analogy with the rest of the argument, Thomson maintains in addition that people’s rights are not violated just because one possesses information about them. On the other hand, they have such a right for the same reason as above, namely that such information may not be acquired with certain means, and there are rights which must be taken into account, concerning how the information about the person in question is used. Thomson’s article has been the object of great attention and there is no reason to repeat the discussion in all its details here (see inter alia Frey 2000, Rachels 1984, Scanlon 1975). She has been criticized by many philosophers for failing to provide grounds for these rights and reasons why individuals in general can be justified in keeping certain matters to themselves. This type of criticism is not, however, entirely fair and in my view, one is shooting at the wrong target and missing what Thomson is really concerned with. As I interpret Thomson, there are grounds for protecting people’s private lives which are already covered by well established social and legal conventions expressed in terms of rights such as the right to own property and the associated right of excluding other people from disposing over one’s own property, as well as the right oneself has, under certain circumstances, to freely dispose over one’s property. In addition, there are well-established conventions, protecting human beings’ life and limb. The point of Thomson’s argument is that these rights probably work perfectly adequately in dealing with most of what different people would consider to be violations of their private lives. What is a matter of being brought up properly or belongs to good manners in social intercourse would fall outside, but one would not wish to bring such conduct before the courts. Probably this basically liberal system of law offers an adequate protection and Thomson

5.2 Social Conventions Shift the Boundaries

95

(ibid., note 5, 288–289) would seem to hold that there is little advance to be made by a philosophical discourse about possible further grounds for the protection of human beings’ private life. Legislation is a blunt instrument and fails to solve all the issues relating to peoples’ need for the protection of their privacy. The main part of the responsibility must be placed on how people are brought up. As we shall see in the case of the legal conception in the next chapter, Thomson’s line of thought is very much in line with the legal development in this sphere where one has focussed either on the rights of ownership or on personal rights. In the American legal tradition, the emphasis has been on property rights, while in the German speaking part of Europe, the emphasis has been on personal rights (Strömholm 1967). The question, however, is how far Thomson’s presentation is adequate for legislators and those who implement the law. It can be viewed as equally fruitless to seek for more profound grounds for the protection which ought to surround people’s private life, as it would to seek the basic reasons behind rights to property. Thomson’s model is pragmatic and can probably solve the most common conflicts about what constitutes improper intrusion in private life, but because of its heavy dependence upon social and legal conventions, there is reason to question how well it can deal both with scientific and technical changes and the value shifts and other factors affecting social conventions. Perhaps the vast increase in confidentiality and secrecy legislation in many countries is a sign that one should take a step back and reflect over the grounds for this legislation, instead of once again adding another brick to a structure that is already groaning under its own weight.

5.2 Social Conventions Shift the Boundaries Thomas Nagel has pointed out that it is risky to blindly rely on prevailing social conventions in deciding where the line is to be drawn in the case of the intrusion into the private sphere (Nagel 1998). There is an inbuilt dilemma in the liberal constitutional state which has to do with the consequences of what are intrinsically important rights and liberties, for the individual’s possibility of using these freedoms for his own purposes. I take this to mean the following. The possibility for individuals to personally define where the line is to be drawn between private and public is strongly influenced by how the legislation is framed. Fundamental rights, such as freedom of opinion, freedom of religion, freedom of speech, freedom of the press and freedom of association constitute a protection for individuals, so that their own values and views can be expressed in society. Especially in the American implementation of these laws they have been used to protect the rights of citizens to decide for themselves in matters which concern them. This has been so, for example, in the case of the right to determine one’s own sexual life, the legalisation of contraceptive means, the right to have an abortion, or the freedom to express one’s religious beliefs (Tushnet 2000). It is in practice the major liberties and rights, and not the personal rights specified by Thomson which have been used. These liberal

96

5 Balancing Seclusion and Participation

freedoms and rights can all be justified by a respect for integrity in the wider sense I have put forward. They are institutions which protect individuals’ possibilities of participating in some connection or other, starting from what they themselves value. In this way, one is able to protect a broad pluralism of values, not only in the United States but also in the majority of democracies. The interpretation and implementation of these rights are, however, influenced to a greater or less degree by social conventions. Thomas Nagel’s observation concerns the fact that liberal society’s protection of these rights risks shifting the line between private and public in a way which de facto undermines the individual’s possibility of having a private life. Nagel gives two reasons for his position. First of all, there is the fact that there are things in people’s private life which can certainly be of central importance to themselves, but which, as a matter of fact, are not relevant to public life and for this reason ought to be excluded from public interest. As an example, he mentions digging into certain public figures’ private lives and the subsequent exposure of matters which are neither relevant to the fact that these people once were public figures or to the fact that they still deserve to be praised or criticized for their contributions. Both Bertrand Russell and Ludwig Wittgenstein made major contributions to philosophy, and Albert Einstein emerged as a mathematical genius of great public interest. Their contributions in these domains attract admiration, criticism and public investigation, even outside the confines of the academic world. On the other hand, according to Nagel, it is difficult to justify making Russell’s love letters, Wittgenstein’s self-pity and Einstein’s marriage problems, public. It is irrelevant for what made them public figures. The media help to shift the boundaries between the private and public in the name of press freedom and public interest, but thereby undermine the individual’s possibilities of personally deciding the degree of participation. Attention can and ought to be paid to what is of relevant public interest and it can in general be maintained that it is up to the individuals themselves as to what information they share with others. In the case of some public figures, their private morals can in certain respects be of general interest. For a public assignment as a politician or administrator in the service of the state or legal system, public trust rests on the fact that those who hold such offices, live as they teach. Confidence in the taxation system presupposes that those who maintain and defend such a public institution are not themselves guilty of tax evasion, or the use of public means for private use. Researchers who are dishonest in their research and manipulate their results similarly jeopardize public trust in research and therefore deserve to be publicly exposed. In this connection, it is also possible to use a relevance criterion in accordance with Nagel’s proposal to strike a balance about what is public and private. Nagel cites the sacking of a pilot for sexual infidelity, as an example of a case where one has exceeded the boundary of what is relevant. The point that may be made with reference to Judith Jarvis Thomson is that it can be necessary to reform both legislation and the implementation of the law taking as one’s point of departure a critique of changes with respect to social and legal conventions, a critique which is based upon a view about what constitutes personal matters and about who has the right to have a say in where the line is drawn for what is relevant.

5.2 Social Conventions Shift the Boundaries

97

Besides the relevance criterion as a basis for drawing the line between what is private and what is public, Nagel points to the fact that an unrestrained application of fundamental constitutional liberties and rights which are reasonable in themselves, runs the risk of forcing citizens to an insight into other people’s private matters, which they would rather be without. Respect for people’s integrity entails that they themselves, as far as it is practically possible, should be given the chance to satisfy their own particular interests, simultaneously as they respect the interests of the opposite party or other people who participate in the same social community. In a family, the members are to some extent forced to have insight into intimate matters, but there are also things that family members treat among themselves as private affairs. To force people to have an insight into another individual’s private affairs, makes them embarrassed and constitutes, therefore, an intrusion into their personal integrity. They no longer dispose over their own emotional territory. Social conventions alter as time passes, and as a result so too do the individual’s possibility of protecting their territory. Nagel takes the sexual revolution and certain religious movements’ unrestrained claims for attention, as examples of how the dividing line between what is private and public is shifted (ibid., 325–326). The liberation from Puritanism has certainly brought about much that is commendable in terms of sexual equality, but today it is difficult to protect oneself from the flood of sexual images and slogans which are broadcast via the public media. Some can view this as an affirmation of the body and sexuality, or as aesthetically attractive, while others are not interested at all. Some, on the other hand, are embarrassed and experience it as unnecessarily invasive. The point is that, irrespective of attitude, one has difficulty in protecting oneself. On the basis of respect for integrity as a right for everyone to be able to protect their own emotional territory, it is difficult to reconcile the unlimited freedom to exposure, with a pluralism where also those who are shy or look upon intimacy as belonging to the private sphere, can move about freely. A similar situation arises with certain religious expressions. There are good reasons for respecting religious freedom, and freedom from state interference in faith’s hidden room is good, as long as the practitioners of this faith respect other fundamental liberties of those who practise religion. From an integrity perspective, however, there is reason to question the missionary enthusiasm of certain religious movements which unrestrainedly, with the powerful methods of the mass-media, try to force upon other people their private religious beliefs about what constitutes a good life. There are grounds for protecting their rights to hold such views, but there is also sometimes reason to protect other people’s right not to have to become involved with them. Nagel defends these boundary lines within the framework of the task of the liberal society, but according to the presentation of integrity which I myself have indicated, they can be defended as an expression of concern for a universal human property and a social recognition of every individual’s right to influence the actual way the boundary is drawn. When the individuals are no longer capable of defending themselves from other people’s points of view about matters which they look upon as being private, there is reason to reappraise the effects both of the system of rules and the social conventions.

98

5 Balancing Seclusion and Participation

5.3 The Basic Interest in Avoiding Certain Types of Insight and Invasion Nagel holds that there are reasons for promoting a protection against involuntary insight into others people’s private matters as part of a social convention designed to protect the private sphere. He gives no hint about how this is to be accomplished, but it ought to be possible by limiting the scope of the basic constitutional freedoms and rights which specially protect individuals’ possibilities of living together with their integrity intact. Thomas Scanlon has not addressed this particular problem, but maintains in a critical discussion with Judith Jarvis Thomson that the different rights which we associate with the protection of private life have a common basis in an interest in avoiding certain kinds of insight and intrusion (Scanlon 1975). This interest may very well include an interest in avoiding insight into other people’s private affairs e.g. to avoid witnessing and listening to a quarrel between a married couple (ibid., 316). According to Scanlon, there is a basic interest in enjoying a privileged zone where intrusion does not take place without special reasons, and it is this interest which is the basis for framing norms with respect to private life, both in the form of laws and less formally as behavioural limitations, such as different social norms. Scanlon’s theory is compatible with my own view, although his arguments are based on the occurrence of well established social conventions. Scanlon also provides support for my view that it is not only a question of respecting certain physical boundaries. It can for example be a matter of a conventional constraint when for reasons of good manners, based on our moral training, we refrain from asking a person about something which they would look upon as very awkward or painful to answer, because it concerns a personal matter. As Scanlon points out, it is always possible to refuse to answer, but the fact that no information is disclosed does not remove the violation caused by asking in the first place. The same type of constraint is present in the guidelines and rules for personnel in public authorities, who have the right to compel people to answer their questions. The questions which may be asked, must be relevant to the work of the authorities and to the object of enquiry. Thomson made a distinction between those actions which were only an expression of bad moral training and of inappropriate behaviour, and those actions which can be considered to be violations of the other person’s rights. For Scanlon there is, however, a point in showing a continuity between these different types of behaviour (ibid., 321). In both cases, it is a question of an improper intrusion into another human being’s “private zone”, to use Scanlon’s terminology. Framing a unified theory of the sanctity of private life is not only of theoretical interest. It can have great practical importance when “we are faced with open questions that are not resolved by our existing conventions” (ibid.). Thomas Nagel’s description of the challenges in the open, mass-media society, underlines the practical importance of a unified view. The development in the area of genetic engineering is an example of this and one which I shall return to in the last chapter. As Scanlon points out, there is something unsatisfactory with Thomson’s idea that one can both voluntarily and involuntarily surrender one’s right to concern for one’s private sphere. A mutual surrender is certainly compatible with the majority of

5.4 The Value of a Differentiated Social Life

99

theories which deal with the right to one’s own personal sphere. It is also reasonable that if one has neglected to close the window, one cannot blame another person who happens to hear parts of the conversation. But if a person has happened to leave one’s diary in a public place, that person is still concerned that no-one else will read it, and thus one ought reasonably to expect that whatever is revealed in such a document, is confidential to the owner of the diary and to any others whose private concerns are discussed in it. There is a fundamental interest in protecting our private sphere, which cannot be expressed in a simple way in terms of legal rights. Jeffrey Reiman is critical of Scanlon because he “has not told us. . . why we have a special interest in privacy,. . . and why this is a legitimate interest, that is, an interest of sufficient importance to warrant protection by our fellow citizens” (Reiman 1984, 302). Reiman is, however, only partly right in this criticism. Scanlon puts forward as a ground for this interest in having a special free zone, the fact that every individual needs such a zone to be able to live his or her life without the steady need to be on one’s guard against possible snoopers and eavesdropper (Scanlon 1975, 317). Scanlon has not developed his theory more than so, but this line of thought is entirely consistent with my own account of integrity as a fundamental property which is common to all social beings and where legitimacy in the process of drawing the line in human contexts is decided by reference to the degree to which human beings are respected, as persons with moral and political authority. However, Scanlon does not do justice to the fact that respect for an individual’s private sphere is also partly determined by the individual’s need and desire to relate to others in a social context.

5.4 The Value of a Differentiated Social Life James Rachels focuses on the individual’s need to relate to other individuals in a social context, to explain why there is a special interest in being free from certain types of intrusion (Rachels 1984). According to Rachels, a private sphere is necessary in order to maintain a variety of social relations. The argument is in tune with Charles Fried’s argument that access to a private sphere is a necessary prerequisite for making intimacy possible, and this is something which is intrinsically good for at least a number of social relationships (Fried 1984). Rachels, however, goes one step further and argues for the value of private life as a necessary requirement for being at all able to participate in several different types of relationship. In Rachels’ view, there is a close connection between human beings’ control over who has access to personal information and their capacity to maintain different types of relationships with different people. If all had the same right to intimacy and access to the same information about an individual, it becomes difficult for the individual to live a socially fully adequate life together with family members, friends, colleagues, neighbours, cosignatories to an agreement or the man in the street or subway. There is nothing treacherous with behaviour of this kind, where we play different roles, even if it can sometimes be difficult to combine them all. The classical drama Antigone is an example of how a role as a member of a family can be difficult to combine with a

100

5 Balancing Seclusion and Participation

public role (See Hollis 1985). Role play belongs to the basic conditions of all social beings. Access to information is justified only to the extent that it is relevant for the social relationship. Robert Murphy from his own anthropological perspective, agrees with this way of looking at things (Murphy 1984). In Chapter 3, an account was given of his example of the Tuaregs and the need of not always revealing one’s intentions. Murphy suggests that it is possible to explain the differences between different cultures in defining private spheres in analogy with how we explain the varying needs of territory in the case of animal species. In the case of human beings, social territory is defined more often with the help of various symbolic and cultural means (ibid., 38). As has been previously stated, there is reason to expect differences in territorial behaviour reflecting differences in cognitive capacity and social complexity. This does not contradict the idea of a continuity between different social beings. Alexander Rosenberg holds that it is possible to endorse Rachels’ view that access to a private sphere provides a possibility of having a differentiated social life, but it still does not explain why a private sphere is something which is morally valuable (Rosenberg 2000, 70–71). He points to the fact that relationships which are characterized by intimacy, friendship, and even love, are not by virtue of that morally valuable. Each and everyone of these characteristics, which in themselves are good, can be used as a means for something which is morally dubious, and the relationship can be part of something that one should morally reject. Corruption based on friendship and nepotism are examples of the latter, and there are cases of terrible deeds which have been carried out within, or on the basis of, a loving relationship which serve as examples of the former. On the other hand, Rosenberg argues, there are examples of societies where there is little or no scope to have a private sphere and yet intimacy, friendship and love are present, nevertheless, in abundance (ibid., 71). In order to be able to assign an intrinsic moral value to having access to a private life, it must, according to Rosenberg, have a significance which extends over different cultural boundaries. In the final analysis, private life, he says, has no intrinsic value from an ethical standpoint. “It is just a matter of withholding information from others” (ibid., 73). Rosenberg then goes on to suggest that there is a form of universal taste for the private, which, even if it has expressed itself in different ways in different cultures, shows that it is a fundamental human need. In his view, the occurrence of this common feature and its significance in facilitating co-operation between individuals, shows that there has been a selective pressure in the course of evolution which has promoted the acceptance of an individual private sphere. In Rosenberg’s eyes, the possibility of a protected private life could therefore be treated as something which is universally valuable for all human beings. This line of reasoning fits in with Griffin’s theory of a number of basic values which form components in an individual’s well-being, as presented earlier. There may very well be something in what Rosenberg asserts, but in reality, it is not much more than what Rachels, Scanlon and Nagel have advocated. Neither does it imply that if this is experienced as something valuable, it cannot be protected with the help of rights. It is not farreaching to suppose that a society as it finds appropriate, chooses to express the

5.5 Non-interference Does Not Solve the Dilemma of Balancing Interests

101

importance of strong social conventions in terms of rights. Nor in my view, had Thomson suggested more than this. In addition, there is no necessary connection between what has emerged due to evolutionary reasons and the assignment of a special value to that which has shown itself to be most adaptive. As Georg Simmel has pointed out, lies as part of the necessary suppression of information, would seem to be, from a sociological standpoint, a central characteristic feature of many social relationships. This should not be confused with the question of whether a lie can be ethically acceptable (Simmel 1906, 448ff.). However, I would agree with Rosenberg that the individual’s private sphere is at least something of primary value, although my claim goes somewhat further by focussing on integrity as a valuable property in terms of an emotional territory. If we wish on this ground to protect this value by setting up rights, this could be done with as much difficulty or ease as we experience in trying to protect other vital interests of the individual by means of such rights. The fact that these interests have an evolutionary explanation does not, in my view, increase their value except in the sense that they fulfil Rosenberg’s demand for possessing a significance which transcends cultural boundaries. For my part, another reason for ensuring that these vital interests are properly appreciated is the fact that it is basically an interest common to all social beings, including animals whose lives are social in character. The moral challenge is to be found, as I see it, not in the recognition of privacy as a fundamental property, or in accordance with Rosenberg’s theory, as a vital interest, but rather in how the boundary is drawn between human striving to live in seclusion and to participate, in various types of social context where a balance with other vital interests must be struck. Technological development makes it possible to obtain insight into people’s private affairs, but it also gives them an opportunity to reach out, for example, in dealing with their banking transactions at home and in receiving information. Genetic research increases the possibility of genetic insight, but it is also a prerequisite for offering the individual new alternatives as regards diagnosis and treatment in the case of illness. Camera surveillance in public places constitutes an intrusion into individual privacy, but it can at the same time be a precondition for being able to go about in a particular area without risking life and limb. The moral challenge consist in formulating principles for how the balance is to be struck between these various interests and how society’s shared institutions are to be designed. It is naturally also a moral challenge to decide what respect for the private spheres of animals entails in human relations with animals.

5.5 Non-interference Does Not Solve the Dilemma of Balancing Interests A number of authors have tried to solve the problem of private life’s moral legitimacy by spotlighting the need for access to a private sphere as a sphere of noninterference (see Laurie 2002). Such a sphere can be looked upon as necessary, in order that individuals are able to be autonomous and lead their own lives. It can

102

5 Balancing Seclusion and Participation

be thought to be especially important when one has to make decisions in questions which crucially affect oneself. As Frey pointed out, access to such a protected sphere is, however, not a necessary precondition for individuals being able to make independent decisions and control their own lives (Frey 2000, 53ff.). It would seem to be entirely possible to be an autonomous person who decides over his life, even if others have insight into it. Part of political and cultural life would in reality seem to consist of a form of private testimony about those things which individuals find of personal importance. So too, family members who have good insight into each other’s personal concerns have still a considerable measure of self-determination, both inside and outside of the family circle. To enjoy a sphere protected from insight and interference concerning those things which concern sensitive matters of one’s private economy, sexual preferences or state of health is neither a necessary or sufficient condition for the individual to be able to make independent decisions and run his or her own life. Here Frey is quite right in his criticism of the supposed connection between autonomy and the right to a protected private sphere. However, this does not prove that the enjoyment of such a sphere cannot be very valuable for the individual’s independent participation in a complex social life. As Rachels pointed out, people who cannot themselves choose which information is to be made available to other individuals, have difficulty in maintaining different types of relationship with different individuals. Our freedom of action in social life becomes de facto much more limited, if everyone else has the same information about us as our parents have. Theoretically it can be argued that information about our sexual preferences or state of health does not influence our capacity to run our lives. In practice, however, the individual’s freedom of action and possibility of making independent decisions is to a great extent determined by social conventions and the way other people judge such things as sexual preferences and health. In an ideal world, it is possible to conceive of an agreement between individuals and between groups, where negotiations about different contracts and the establishment of social relations would function on the basis of equal and complete insight into the other party’s situation and intentions. This would also perhaps be the most just arrangement. However the real world is not like this, neither in the case of animals nor in the case of human beings in cultures. In reality, individuals are always in some sense exposed to competition, or even exposed to threats and danger, and various business markets and social relationships are based on the fact that the individual’s own situation, capacities, intentions and goals, are not fully known. It can be maintained that to the extent that information is relevant for others, individuals should not at all enjoy a freedom from insight, but the question of what is relevant is not easy to decide. Among other things, it is dependent on how power and possibilities of insight are distributed in society. It is this problem of balancing things which is dealt with through legislation about privacy in the sphere of labour law or through marketing regulation, competition legislation, and laws relating to consumer purchase. A balance must be struck between different interests, but total openness and an impossibility for individuals to avoid insight would probably be reckoned by everyone as a drawback. It would also limit freedom of action in the sense that individuals in a partly hostile world, would

5.6 Basis for Balancing Interests

103

not have the same opportunity to retire to interpret what is happening around them, or be able to reflect without being disturbed, or be able to choose between different courses of action and create new alternatives for life and development together with others. Autonomy as a moral principle is in reality not worth very much without the capacity to be able personally to exert influence on one’s territory. It is more serious from a moral standpoint if, however, the individual is personally denied insight into what others may know, and has no possibility of participating in decisions about how the balance between different interests in society is to be reached. It would imply a violation of the individual’s integrity as a member of society and person with moral authority. The use of a private sphere is, for the reasons given, something valuable, but if participation in different types of social relationships is to be possible, the boundaries must be able to be moved and this value replaced by other values. Peace and quiet in private seclusion must be weighed against the experiences which deep, personal relationships can give. This and similar cases where one is required to weigh things up, is carried out by individuals themselves, as has been shown in the historical account, with varying degrees of freedom depending on material and cultural factors, social conventions and different types of norm. Participation in a society sometimes presupposes other considerations. If you wish to become a pilot, you must be prepared to submit to regular and thorough health tests, given the risks which other people run if a pilot suddenly becomes ill or fails to attend to what is happening. A tax system presupposes some form of scrutiny of a citizen’s self-assessment if it is to be looked upon as just. The introduction of new medical products and treatment within the health care system presupposes access to medical information about individuals and sometimes information about life style, health behaviour and family. Private life as something totally protected, would seem to be neither possible nor desirable in a society, even if the possibility of leading such a life in some form of seclusion from the rest of humanity, can be experienced as something valuable.

5.6 Basis for Balancing Interests The need to balance different interests would seem to be inevitable but an important question concerns the grounds used to strike a balance between the various interests involved and whether there are parts of private life which ought to enjoy absolute protection from insight and intrusion. Elizabeth Neill has formulated a theory about the right to a private life as a natural right (Neill 2001). She envisages that the right to protection from insight and intrusion into people’s private affairs is based on a recognition of a private sphere as something which belongs to human nature. However, she rejects the usual idea concerning natural rights, that these constitute something which belongs to human beings as a birth right. The main idea is instead that all individuals in accordance with their nature, develop a personal self-understanding which is inviolate. Even if there were unlimited possibilities to read people’s thoughts, this

104

5 Balancing Seclusion and Participation

would not affect their capacity to look upon themselves as individuals with a special identity (ibid., 22 ff.). Their personal identity would be disclosed, but not their own view of their identity. In order to do this, the thought-reader would have to be in a position, not merely to read their thoughts, but also to produce them. For Neill, human dignity is a psychological fact. Such an ontological basis for human dignity seems somewhat daring, given our imperfect knowledge of how a mental event such as a thought is created. Neill’s approach is very similar to Axel Honneth’s later development of a theory about social recognition as an answer to the individual’s development of a personal identity with self-esteem and self-respect. Here I shall not repeat my criticism of these attempts to formulate rights and duties on an ontological basis. Neill holds, however, that she has good reasons for maintaining that respect for human dignity is universally valid. This is expressed both in norms which are essentially static, and in more flexible norms where there is an adjustment to various social conventions. According to Neill, among the static norms are those rules which regulate our sexual life and the exposure of human beings’ genitalia. Here there is an absolute right to private life and an obligation for the individual to preserve these areas as something private. There would seem to be considerable general agreement that human sexual relations belong self-evidently to their private affairs. However, it is far from certain that the boundary for intrusion can be fixed absolutely. Under the cloak of these broadly accepted norms, other types of violation take place, and society finds it sometimes necessary to have insight in order to protect women from assault and violence, or to protect children from sexual abuse. The view which looks upon the right to a private life as a natural right, even in Neill’s milder formulation, has difficulty in explaining why one can and ought to look upon this as right and reasonable, A better variant in legal ethics is to follow Annamaria J. Westregård and assume that sanctity of private life is a prima facie right (Westregård 2002). It is then a right which should be observed, but which in certain situations may need to be relinquished in order to protect other vital interests. The examples of violence directed at women and paedophilia illustrate this. Westregård gives no grounds for why people should enjoy a right of this kind and how different rights of this kind are to be balanced, but the idea corresponds rather well to my own exposition of integrity. Who ever approaches another’s person’s territory, halts and does not enter without good reason, or without an invitation from the person on the other side of the boundary marking out limits of the territory. The moral reason for this can be that the enjoyment of a protected private life is a prima facie right, based on a view of the private sphere as an important part of the good life for every individual. Westregård says nothing, however, about how strong this right is when compared to other intrinsically important rights. I shall return to Westregård in the chapter on the legal conception of integrity and the right to a private life. Richard Arneson has proposed a form of striking a balance, where one starts from the assumption that the enjoyment of a private sphere is one of several components in a person’s well-being (Arneson 2000). It can be a very central part of what constitutes a good life, but its value is not infinite, and it cannot unrestrictedly be assigned priority, no matter the price. Arneson’s proposal is compatible with the insight that

5.6 Basis for Balancing Interests

105

human beings, in certain circumstances, are prepared to throw open their private spheres in order to participate in social life as a member of society. Individuals can choose a larger area for seclusion but then one must reckon with the consequences of not being able to satisfy other interests. Arneson’s proposal implies that one ought to apply the same kind of consideration when organizing rights and duties at a social level, with the important provision that one ought to follow a certain order of precedence. Without such an order, there is a risk that the individual’s well-being will always take second place to general or public interest, or that the private affairs of the individual citizen are made completely subordinate to the totalitarian state. George Orwell has given a good description of the consequences of this latter policy in his book 1984. Arneson proposes that in striking a balance, we should assign a weight to wellbeing that favours those who are especially vulnerable. It is a form of consequentialist ethical test, which in fact most societies are prepared to consider. It does not presuppose that we identify and measure the citizens’ well being in meticulous detail or that the weakest groups are given priority, no matter the price. A progressive tax system where those who earn more, pay more in tax than people with lower incomes is an expression for this kind of weighting. In several welfare societies, special measures have been introduced with an eye to protecting the well-being of children. A social worker has a duty to report if a child is maltreated in a family, despite the fact that such a measure means that the home as a place protected from insight, is no longer 100% respected. Teachers, nursery staff and hospital personnel have a legal responsibility to report to the social services any suspicion of child abuse or incest. In the case of well-founded suspicion of paedophilia, the police and prosecutor are legally obliged to investigate a person’s private computer and correspondence. Individuals who thus become the object of close investigation, may experience an intrusion into their private life, and thereby a decrease in their well-being, but it is justified by the fact that the well-being of vulnerable groups is given priority. Arneson’s point is that in an attempt to bring about a just distribution of wellbeing and burdens in a society, attention must be paid to the consequences of various rights, including the supposed right to a private life. As has been shown, such a view of things agrees very well with how the problem of balancing things is solved in democratic welfare states. It is still possible to assign a very high value to respect for the sanctity of private life, but not to any price whatsoever. This is consistent with the account of the concept of integrity which I have put forward, provided that the forms of intrusion and the institutions which are responsible for striking the balance are open to scrutiny and democratic control. It should be done in accordance with principles which are openly presented and are subject to some form of public influence. Arneson, however, does not discuss these aspects of the matter. His objective was to argue that the protection of a private sphere must be balanced with the various consequences of such protection. It would seem to be a reasonable attitude which is shared by many. H. Tristram Engelhardt Jr also considers that a balance must be struck between different interests but he does not propose some order of priority for arriving at such a balance as in the consequentialist approach of Arneson (Engelhardt 2000).

106

5 Balancing Seclusion and Participation

Engelhardt holds that an intrusion into particular individuals’ private affairs is only legitimate if the voluntary consent of the individuals has been obtained. His point is that if there is no shared meaningful view about what is good or right and about what duty demands, then the social moral order and the legitimacy of the government must be based on the consent of the citizens. The right to a private life is given priority, because of the incapacity to formulate a common moral vision for society, and the demand for consent is a logical consequence of this. According to Engelhardt “. . . It is consent, contract, and the market that can provide moral authority” (ibid., 125). The right to a private life constitutes for Engelhardt a reminder to governments and authorities that their authority is limited by the citizens, without whom they would not enjoy any authority at all. This interpretation is to some extent compatible with the idea of the enjoyment of a private sphere, as something which is also very valuable from the consequentialist point of view. Engelhardt’s demand that intrusion into people’s private lives is only morally legitimate if consent has been given, seems, however, to go a little too far. Judith Wagner DeCew makes the same demand in the area of medical ethics (DeCew 2000). The consent requirement in their accounts runs the risk of being a formula which must be used, even when other important values are at stake and, even worse, of being a formula which can be applied without people even bothering to test the consequences of giving this priority to the right to a protected private sphere. We do not ask a wife-beater for his permission to investigate a well based suspicion of violence towards women. A family father can have the right to live his own life in his own chosen way, but it becomes unreasonable to demand his consent in order to rescue a child from social misery. A pregnant woman who abuses drugs can on the same grounds be a case for compulsory care. These attempts to balance interests are done out of respect for other people, but it concerns individuals who belong to the same private sphere. There can also be situations when it is in the individual’s interest to surrender a right which is intrinsically of central importance, such as the right to give an informed consent to a measure which concerns her or him. It can be a matter of interests associated with the desire to participate in social life which implies that personal interests must sometimes be adjusted to fit in with other people’s interests. Individuals have several vital interests which can conflict with one another. When the demand for consent entails that other values which are important for the individual would be lost, the individual can have an interest in not being asked. I shall return to this in the last chapter, when I discuss research which makes use of medical registers and human biological material. Because we may be willing to waive our right to consent in the case of private matters, it does not necessarily imply that we surrender our integrity as a person with moral and political authority: we retain the right to give our consent to the arrangements by which a balance is struck between the different values, and also to demand insight into how the balance is reached. In my presentation of the concept of integrity, the enjoyment of a protected zone in private seclusion is part of what a social being wishes to protect. There are, however, also other values associated with the desire to participate in social relationships and in a social context. Respecting people’s integrity means that in confronting someone, we halt and attend to their signals about where the boundaries of their

5.6 Basis for Balancing Interests

107

territory lie, including where the private zone is to be found within this territory. We do not enter someone’s emotional territory without good reason, irrespective of whether the individual is an animal, a small child or an adult. For individuals with sufficient emotive and cognitive capacity, respect for integrity implies in addition a respect for the individual as a person with moral and political authority. In a Swedish-speaking context, respect for integrity is invariably assumed to correspond to what in English would be formulated as respect for “privacy”. This is far too limited a perspective about what is at stake. The discussion deals mainly with the legal sphere and I shall give an account of this in the next chapter. Although the concept of integrity is often used in this narrow sense, an adequate theory is still lacking. One who has tried to fill the gap, is Göran Hermerén (Hermerén 1986). Hermerén has proposed partly a principle of integrity and partly a principle on the right to a private life as a guideline in the ethics of research. He formulates the principle of integrity as a duty to “respect the opinions, wishes and values of those participating in the research, those providing information and of those collaborating in the research.” The principle of the right to a private life implies that “people themselves have a right to decide (i) what information about them should be given to whom (ii) for what purpose this information may be used and (iii) what information may be communicated to them” (ibid., 143). Formulated in this way, however, consideration for people’s integrity is both too wide and too narrow. It is too narrow because individuals who temporarily or permanently lack the capacity to express their opinions, wishes or values, will not enjoy any respect for their integrity. It is too wide because there are opinions, wishes and values which scarcely merit respect, either because they are clearly immoral (“I have the right to exploit another individual for my own arbitrary ends, using any means whatsoever”) or because they rely on false or insufficient knowledge (“the earth is flat”, “men are more intelligent than women”, “an octopus cannot feel pain”). It is customary to accord more respect to well-informed wishes than to uninformed ones (Hansson 2000). It is regarded as self-evident that in a political democracy, people’s values play an important role. In various enquiries, these opinions are in great demand and the political elite whose mandate derives from the citizens is expected to be particularly sensitive to the opinions of the latter, in various issues involving value. Not only all legislation, but also other political decisions, presupposes some degree of anchorage in the values of the people. Despite this, values do not in themselves constitute good arguments, and from an ethical point of view, it is problematic to take these for granted. The reason is that one sometimes changes one’s opinions after having acquired more information about the facts, or having perceived the kind of value conflicts which arise, when some value which one esteems is achieved. One perhaps discovers values which had passed unnoticed and undesirable consequences which had not been anticipated. I tend to agree with George Henrik von Wright’s idea that informed preferences should be taken more seriously than the preferences we actually happen to have at the moment (von Wright 1997). “To come into possession of, or experience some X which we wish, increases our welfare provided that we would wish this X if we were informed about the causal relations and consequences which hold both for the totality of which X is part and the totality where not-X is included instead of X” (ibid., 7). von Wright speaks in this connection about

108

5 Balancing Seclusion and Participation

people’s individual preferences, but it ought to be possible to apply this reasoning also to collective political decisions, for example those which apply to the implementation of a protection for human private life in different areas of society. In order to deal with these objections, Hermerén’s principle can be formulated instead as respect that human beings should be given the possibility of expressing their opinions, of having insight into how the balancing of various interests is carried out or have the democratic means to influence how a balance is reached. Such a principle is closer to my own position, but the problem of including persons who lack such a capacity, remains. Hermerén does not further enlarge in justifying the right to a private life, but this can be done as has been shown above, in a number of ways. Hermerén’s principle is, however, very restricted, since it is only aimed at information about individuals. Most people, irrespective of whether the information acquired is communicated to others or exploited in some way, look upon outside insight into something one regards as a personal matter, as an intrusion. On the basis of the moral philosophical account, there are several central components which ought to be noted in the legal regulation of human beings’ desire for respect for their privacy. The principle of non-interference is inadequate as a legal guideline. It does not fit in with individuals’ dual interest in the protection of private life and in participation in a differentiated social life. Nor does it meet the test when it is weighed against the reasonable and just interests of other parties involved. Insight into or intrusion into the individual’s private sphere is, however, impermissible without special cause. One should also take note of the fact that legislation is a crude instrument for regulation in an area where there is rapid technological development and where the various technical achievements provide both insight into people’s personal matters and simultaneously opportunities for a wider perspective and participation. One must also take into account changes in value norms and the establishment of new social conventions which shift the boundaries between the private and the public, if not always in a way which is approved by everyone. A criterion of relevance, in accordance with Thomas Nagel’s proposal, provides a first reasonable means of testing where we ought to halt, and given the fact that a protected zone is a key value, one could place the burden of proof as to what is relevant in such a connection, on those who wish insight or contemplate an intrusion. Attention should also be paid to the fact that the traditionally cherished norm of consent, as a way of legitimizing insight or intrusion in the private sphere, is inadequate. If it is strictly applied, it risks running into conflict with interests which are of crucial importance for the individual. It ought to be supplemented with a system where individuals can waive their right to informed consent. Sometimes there must be priorities between interests. Richard Arneson has given a reasonable model where the interests of those most vulnerable must be given priority. Such a weighting principle is in agreement with Rawl’s “difference principle”, which says that unequal distribution can be accepted – it is sometimes unavoidable – provided that the worst placed members of society reap a benefit (Rawls 1972). Common to all balancing principles, however, is the demand for full insight and transparency about what applies, and given the individual’s moral and political authority, for the possibility of exerting democratic influence.

Chapter 6

Legal Protection – Privacy and Integrity from the Perspective of Jurisprudence and the Law

People’s interest in keeping their own private affairs to themselves or within the bosom of the family has found expression in various legal rules throughout history. For well-placed Romans public assignments were combined with private and family life, but at the same time one enjoyed special privileges with varying degrees of individual freedom. For those who could afford it, the home became increasingly independent of public facilities. Despite this, Roman law was a law for all Roman citizens and the aim was the common good. During the early middle ages, private interest became dominant (Rouche 1987, 419ff.). The success of the warrior class and the ties of loyalty among its members determined the rights of private property. Any idea of participation in a larger context than that conferred by their own private property did not exist and Europe was torn to pieces by bloody wars. Inasmuch as disputes were settled in court, they concerned issues of property, trade and theft and they were judged with the support of laws which had been laid down within the warrior class’s power sphere. Legislation concerning public matters was rare. In Burgundian law which dates from 502, only 6 out of 105 articles dealt with public law and in the Lex Salica from 511, the figure was 8 out of 78 (ibid., 422). An interesting example of the administration of justice, where one sought to take account of the family’s private interest was the privilege enjoyed by the King of France during the 18th century which allowed him by means of a so-called lettre de cachet to order the trial and imprisonment of persons, in a procedure which bypassed public trial in a court of law (Farge 1989, 588–589). The family’s honour and secrets would thus be spared from becoming an object of public attention and scrutiny. The King’s charter may have been considered justified, given the family’s exposure at public trials. There was no shortage of constables who supervised public order in Paris. Around 1740, there were 48 constables who served as the King’s special messengers, bearing the title conseiller du roi. These had virtually unlimited power to supervise their neighbourhoods, intercede in disputes and report both crimes and other matters. Sometimes a family’s honour was put in jeopardy by a son’s debauchery, a drunken father’s failure to discharge his family duties or a wife’s sexual liberties outside the family. The constable received the formal complaint and the sentence was passed after a long and public trial where the trial proceedings in themselves contributed to the family’s scandal. “Justice was public: the sentence was posted and the victim was pilloried at a busy corner or, if juvenile, whipped. Thus honor M.G. Hansson, The Private Sphere,  C Springer 2008

109

110

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

was not truly restored. The mark of justice was an enduring blemish on a family’s reputation, and appealing to the authorities was a double-edged sword” (ibid., 588). On account of this, a need arose for a jurisdiction alongside the public court with the aim of protecting the family. It was not only important for a person’s self-image, but was also financially significant. A damaged reputation had also repercussions on private business.

6.1 The Declarations Set the Basic Tone This special legal arrangement to deal with the conflicts of private life, however, encountered mounting opposition in the latter part of the 18th century. It gave scope for arbitrariness and manipulation which was deemed unworthy of a constitutional state. Requests for lettres de cachet were used as instruments for private intrigue, to manipulate people out of the way in disputes about inheritance, and in other schemes for promoting the power of private individuals (ibid., 598). These legal charters were also employed on a daily basis for quite other purposes than sparing the family’s honour. On the basis of their authorization, thieves, inconvenient or undesirable priests, beggars, and prostitutes were imprisoned. “No one knew any longer what offences fell within the jurisdiction of the ordinary courts” (ibid., 599). The King’s power to pass sentence in a private arrangement was vigorously questioned and was looked upon by the growing crowd of revolutionaries in France as an instance of tyranny. Judicial power ought to be public and transparent. With the French Revolution, the King’s privilege ceased and on 26 August 1789, the new National Assembly passed a declaration of human and civic rights. This declaration made clear that a citizen could lose their freedom only with the support of the law and within the framework of a legal process (Article 7). The basis was the assumption that human beings are born free and equal with respect to their rights to freedom, property and security, as well as the right to oppose oppression. All citizens were therefore to be equal before the law, and freedom of speech and freedom of the press were accorded a special status. The free exchange of ideas and opinions was viewed as one of humankind’s most valuable rights. In accordance with this right, the freedom of every citizen to speak, write and express his or her opinions was guaranteed, and this freedom could only be limited by law (Article 11). The French Declaration of the Rights of Man removed the private privileges of the few and simultaneously gave prominence to the rights and duties of every citizen in a democratic society. Implicitly a basis of respect was established for the citizen’s private sphere, the sphere where ideas and opinions are formed and which permits personal reflection and the adoption of personal attitudes. In the light of this, the citizens’ confidential letters were also protected from censorship, something which was first legally formulated in the Code civil 1803, article 1382 (Strömholm 1967, 27). Respect for the sanctity of private life is a consequence of the respect for every citizen as a person possessing political authority. Respect for every human being and their right to a private sphere is not formulated negatively as a limitation of

6.1 The Declarations Set the Basic Tone

111

state power and the public sphere, but is derived positively from the basic idea of treating every human being as possessing authority and as one invited to participate in society on equal terms with others. Political recognition precedes drawing the boundary line between what is public and what is private. The same fundamental position is expressed in the American Declaration of Independence of 4 July 1776 and in the basic amendments to the constitution of the United States which were approved in 15 December 1791, the Bill of Rights. In the Declaration of Independence the fundamental ideas were derived from the idea that all men are created equal and furnished with certain inalienable rights to life and liberty, and the right to the pursuit of happiness. The government’s power rests on the consent of the citizens. The First Amendment concerns freedom of religion, freedom of speech, freedom of the press and freedom of assembly. In the Fourth Amendment there follows protection for the individual’s personal security and the prohibition of violating a person’s house and home without special legal powers. The pattern recurs again in the case of Sweden. In the coup d’État of March 1809, King Gustav IV Adolf and the whole of his family were deposed. A special commission, “the very first Standing Committee on the Constitution” set to work immediately to draft a new constitution (Frängsmyr 2000/2001, Del I, 424). On 6 June the same year, the new Instrument of Government was formally accepted. This constitution remained in force until 1974. The basic ideas that governmental power proceeds from the people, and that it shall be exercised with due respect for the equal value of all human beings and for the liberty and dignity of individuals, have survived as prominent paragraphs. In Chapter 1, Article 2 in the Instrument of Government of 1974, it is stipulated that “The public institutions shall promote the ideals of democracy as guidelines in all sectors of society and protect the private and family lives of private persons. The public institutions shall promote the opportunity for all to attain participation and equality in society.” Once more, the underlying tone is positive, and respect is shown for the idea that each citizen possesses political authority and everyone has a possibility of participating in society. People are free to form opinions and the parliament is to be appointed by free, secret and direct elections. The possibility for seclusion and the line dividing insight and intrusion in the private sphere from the public sphere are based on a respect for human beings as persons with moral authority, with the capacity to participate in moulding opinions and as persons with political authority, with the capacity to cast a vote in secret. Graeme Laurie maintains that a crucial limitation with every concept of a right to protection of the private sphere is that this right is negatively expressed. According to Laurie, the right to a private life is always formulated as a right to non-interference. It is never looked upon as a positive attribution and “it does not provide for any continuing control over personal matters once they enter the public sphere” (ibid.). Laurie has produced an interesting and fruitful theory of the right to a private life on the basis of the idea of the right to protection of the personal spatial sphere, which I shall shortly return to. A great deal of the legal and ethical discussion has quite properly, as Laurie describes, made the basic assumption that human beings should sometimes be left in peace and that every citizen has a basic interest in protecting the private sphere from insight and unwarranted entry on the part of

112

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

the public. As noted, however, the fundamental argument is formulated positively in terms of social and political recognition. Laws and social institutions must then be framed in a way which permits insight into, and control over personal matters, also when these occur in the public sphere. In contrast to what Laurie maintains, there is – and in a constitutional state there must be – a possibility of insight and control when personal matters become the object of the public exercise of power. This can be illustrated by a municipal social services committee which in certain circumstances has the right to interfere in a family’s private affairs. This body must, however, be open to insight and control so that the person who is the object of such an intrusion, as well as other people, can see that the committee’s decision and the way it was implemented, were in accordance with the law. Another example is psychiatric care, where an individual who is committed to care, under certain circumstances does not have the right of insight into all that is relevant to this decision. The reason for this is that the patient could thereby be injured. It ought, however, to be crystal clear – and it should be possible for each and every person who scrutinizes an authority’s exercise of power to see – that it is this principle of balancing interests which is applied. The values which are associated with a secluded life or the preoccupation with personal matters are all kinds of social value. They presuppose and acquire their meaning only in a context where various kinds of social relationships with other individuals are involved. To be banished to seclusion on a desert island, certainly implies that one will be left in peace, but it is not the kind of situation which people wishing to protect their private life strive for. It can be very valuable for people, when they so wish, to retire from the glare of attention and insight, in order to rest undisturbed, or to reflect over their existence. The value of this seclusion and freedom from insight, however, vanishes if it is compulsory, rather than the product of the individual’s free choice within the framework of a wider interest in participation in the social context of which the individual is part. Seclusion is not the same as isolation, but presupposes the individual’s free choice. According to my presentation of integrity, what is valuable in this possibility rests on a central need in all social beings, to be able to have command over, and independently relate to, their emotional and social territory. The desire for seclusion is intimately associated with the wish to participate. Society’s respect for, and protection of, this possibility does not rest, however, on the actual occurrence of this need, no matter how central it may appear to be. It rests on respect for human beings as citizens with moral and political authority. Citizens are first and foremost participants. On the basis of this participation they are assigned the right to retire out of reach of insight but they also have the right to exercise insight into, and have possibilities of controlling, how their personal matters are dealt with in the public sphere. It is this affirmative attitude to every individual, which found expression in some of the fundamental documents of modern democracy, such as the French declaration on the rights of human beings and citizens’ rights, and in the corresponding American declaration of independence. As has been shown, this attitude also underlies and informs the Swedish constitution. The protection against insight and intrusion rests ultimately, not upon an idea of non-interference, but on a positive recognition of every person’s participation in the public sphere, and thereby on the existence of a

6.2 The Significance of the Private Sphere for Democracy

113

control possibility with regard to balancing between that which only concerns the individual and the family, and that which concerns other people.

6.2 The Significance of the Private Sphere for Democracy In a survey of the modern American legal discussion of the right to protection for private life, Philippa Strum has also pointed out that the basic reasons for this legislation is to be found in respect for the citizens’ participation in a democratic society (Strum 1998, 6ff.). In order to think freely, discuss ideas and make the decisions which guide them in their role as members of a democracy, citizens require access to their own mental and physically demarcated sphere. “Citizens of a democracy must know that they can quietly try out notions that differ radically from those already ensconced in law, and do so without fear of government or societal retribution. They need privacy not only to think and discuss ideas with others but to change their minds without fear of public embarrassment” (ibid., 6). Probably freedom of religion was also an important historical consideration. The pilgrims who came to New England during the 17th century had escaped from the English governments’s hunt for heretics, a search which had legitimized arbitrary intrusions and raids on homes. One wished to be free from such abuses of power in the name of religion. Stig Strömholm in a study in comparative law, has drawn attention to the difference between the Continental European legal tradition and the Anglo-American tradition where the Europeans have more often based their arguments on a somewhat wider concept of a right to one’s own person (Rights of the Personality) instead of using the somewhat narrower concept of private life (Privacy) (Strömholm 1967, 21). This is clear from the way that respect for an individual’s privacy, especially in the American legal tradition, is often interpreted in the light of property rights, which is a special and limited approach to the problems involved. The individual is regarded as having a right to a protection from insight and intrusion in private matters, just as one has a right to exclude a person from disposing over one’s property. In the Continental European tradition the right to a private life is justified as a part of the individual’s liberties and rights (ibid., 25ff.). The individual is looked upon as having a legitimate interest in a protected zone, a room which the peering eye of insight cannot reach and where one can be left in peace from intrusion on the part of other private subjects, a sanctum inaccessible both to the media’s interpretation of public interest and the exercise of state power. In French legislation, there is also an emphasis on protection of the human body which is not in the same way to be found in Anglo-American discussion, something which supports the idea of a broader type of approach (ibid., 36). However, taking into account the common background in a defence of the individual’s liberties and rights as a citizen, these differences should not be exaggerated. It is also the case that the American legal discussion has mainly proceeded from the idea of the “inviolate personality”, and the right to individual and family property is to be considered as a natural development of the legal practice which recognized every person’s right to protect what is their own (Warren and Brandeis 1890).

114

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

There is a link between the protection of people’s private life as part of a respect for those who possess moral and political authority, and the support I sought from Hegel’s philosophy of law in formulating my own theory of integrity. The strength of the state, according to Hegel, is determined not only by the constitution, but also by the extent to which this constitution can form a starting point for individuals’ rights and duties as individuals with particular needs. The defence of citizens’ integrity is conducted within the framework of a constitution, which in real terms is embodied in the various institutions of the state. The fundamental principle of respect for people’s integrity remains the same, even if the form of social institutions, the legal system and the system of rules and guidelines must change with the passage of time and become adapted to social conditions, new knowledge and technical advances. Individuals first become truly free, when they have achieved recognition as citizens with political authority and with insight into, and with the possibility of controlling and influencing, the principles, rules and institutions which regulate public life. There is a risk that both governments and special pressure groups in their desire to improve the world, and despite their good intentions, become instead oppressors of others because of their relatively restricted view of a certain issue. The constitution is ill-suited to establish in law an unambiguous meaning for such porous concepts as “private life”, when material conditions and social conventions may change quickly, and when new inventions which render people’s private lives more transparent and open to insight, are continually being launched. As was shown in the historical account, there are a wide variety of conceptions. Possibilities of creating material conditions which give individuals room for their own affairs, can only be partially solved through legislation, and the legislator can do little about changes in social conventions. In the text of the constitution, however, a more fundamental respect for human beings’ integrity can be codified in a way which guarantees citizens insight into, and influence over, procedures which deal with drawing the line between what is private and what is public.

6.3 The Right to Protect What Is One’s Own If one wishes to understand the modern legal discussion of respect for people’s private life, it is impossible to avoid consulting the influential article entitled “The right to privacy [The implicit made explicit]” which appeared in the December number of Harvard Law Review in 1890. The authors were the Boston attorneys Samuel D. Warren and Louis D. Brandeis (Warren and Brandeis 1890). It can be useful to begin by clarifying the contemporary context, as it has been described by Philippa Strum (Strum 1998, 2ff.). Technological advances in 1880s provide the media with an opportunity to expand their activities. New printing techniques, rapid rotary presses, and the possibility of colour printing and the publication of photographs, became effective instruments for newspaper proprietors and journalists who wished to cover stories which they judged to be of public interest. Samuel D. Warren became a favourite target of journalists and photographers, when he

6.3 The Right to Protect What Is One’s Own

115

married Mabel Bayard, the daughter of a senator from Delaware. The newspapers closely followed their social gatherings and private parties, with the help of journalists disguised as waiters, who were thus able to pick up gossip and grab opportunities for photographs. Warren turned to a former legal colleague, Louis D. Brandeis, to discuss the protection that the law offered and how it could deal with the challenges offered by the new technical development. What legal remedy was available to allow him to live his private life in peace? These questions led to the article in Harvard Law Review. Warren and Brandeis hold that even if there does not exist some explicit right to the protection of the private life of citizens in the American Constitution, there is such a right implicit in legal precedent (Common Law) and in the legislation designed to ensure the rights of property. The fundamental right to life and to one’s person implies that individuals had an implicit right to exclude others from insight, and to dispose over that which belonged to themselves. The right to enjoy life and the right to pursue a happy life includes also the right to be left in peace. The right to exclude others from the right to dispose over what oneself owns, does not cover only property, but also extends to the right to inviolability with respect to oneself. “The common law secures to each individual the right of determining ordinarily, to what extent his thoughts, sentiments and emotions shall be communicated to others” (Warren and Brandeis 1890, 78). Copyright can be thought to rest on the right to ownership of an intellectual or artistic property but according to Warren and Brandeis it is wider than this. It also includes the right to enjoy “the peace of mind or relief afforded by the ability to prevent any publication at all” (ibid., 79). The same reason is often given for the retention of the so-called “teacher’s exemption” in Sweden (SOU 1996:70). It is an exemption which, contrary to what occurs in other sectors of the public service, gives teachers and researchers the legal right to results, obtained as part of their employment. They can seek not only to patent their research results, but they can also themselves decide if the results should be published or not. Like a property right, copyright entails the more fundamental right to personal immunity and to be left in peace, if one so desires. However, in order to meet the challenges brought about by technical advances, it does not suffice, according to Warren and Brandeis, to refer to copyright and the right of property. To be photographed without permission and to have things broadcast to all and sundry which one has reason to keep to oneself, are types of action which are difficult to deal with legally within the framework of the laws of property or copyright. What is implicit, however, in these fundamental legal protections, is the reference to wider respect for all human beings’ desire to be left in peace to enjoy their own private life. What is already implicit, should, according to Warren and Brandeis, be formulated explicitly as a right to protection of one’s private life (The right to privacy). Right to privacy does not imply that such a right is potentially unrestricted. Warren and Brandeis propose six points as a starting point for balancing the right to privacy with the other interests involved (ibid., 87). (i) The right to privacy does not prohibit any publication of matter which is of public or general interest. (ii) The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it

116

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

a privileged communication according to the law of slander and libel. (iii) The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage. (iv) The right to privacy ceases upon the publication of the facts by the individual, or with his consent. (v) The truth of the matter published does not afford a defence. (vi) The absence of “malice” in the publisher does not afford a defence. The problem of striking a balance between the various interests involved has, subsequently, been thoroughly discussed both in the literature of moral philosophy and the law, and as was shown in the previous chapter, the question of the relevance of the information for the individual’s participation and role in society emerges prominently. Warren and Brandeis hold that individuals, in the right to privacy, have a useful weapon in their fight to live in seclusion and at the same time participate in society on terms, which from the perspective of democracy are reasonable. The practice of law has provided him with such a weapon “forged in the slow fire of the centuries, and today fitly tempered to his hand” (ibid., 90).

6.4 Legislation Arrives at the Same Result but in Different Ways The modern legal discussion of the right of privacy has always been given new impetus by the fact that technological progress has supplied new means for insight and surveillance. Faster methods of printing, the telephone, communication via the internet, satellite surveillance and now the recent possibility with the help of a biological trace in the form of a bloodstain or a hair to identify the individual and their special characteristic with regard both to their state of health and behaviour, have powerfully increased the possibilities of insight. At the same time, this technological development has increased the individual’s possibilities of participating in society. To be able to have access to information from all over the world, to be able to spread thoughts, opinions and research results widely, to sit at a computer and work from a distance, to sit at home and deal with bank transactions, to be able to move about in public places in greater security, since they are under the surveillance of the representatives of public order with their video cameras, and to be able to share in the new medical treatments made possible by genetic engineering, are all instruments which allow citizens to participate. Technology can both promote and threaten the individual’s interest in seclusion, and it can both promote and threaten the equality of citizens’ rights to participation in society, since not everyone has the same possibility of using the technology. For these reasons, technology has a great influence both on the definition of the private sphere and on the balance between an interest in protecting this sphere, the individual’s interest in participating in society, and the common interests which society seeks to protect. Social and cultural development must also be taken into account. As Thomas Nagel pointed out, the social conventions about what is to be regarded as private, change in the course of time (Nagel 1998). Differing views about the value of the private spheres of individuals and families, and about the boundaries of these spheres, become increasingly confused in modern society due to migration and cross-cultural influences. In order

6.4 Legislation Arrives at the Same Result but in Different Ways

117

to protect both the interests of the citizens and the interest of society in a wise fashion, the legislator is faced with shooting at a moving target. Given this, it is appropriate that the legislator’s first concern is with the forms for insight and the balancing of the interests involved. Respect for the integrity of individuals in the broader sense which I have given the concept, namely a respect for the citizens as persons possessing moral and political authority, takes precedence to deciding what is to be protected and how. The legal discussion in USA about how the constitution can be thought to protect American citizens’ interest against unauthorized intrusion into private life, serves as a good illustration of the problems which arise in trying to find unambiguous definitions and a consistent interpretation of the law, when technology, as well as moral and social conventions, form such a moving target. Scott D. Gerber has drawn attention to a number of interpretational traditions within the theory of the American constitution, all of them with outstanding representatives (Gerber 2000). The defence for people’s right to a private life protected against invasion has above all concerned the following: the right of the police to intercept the communications of suspected criminals; surveillance with video cameras in public places; copyright issues; the right to inform people about contraceptive aids; women’s right to have an abortion carried out; and a terminally ill person’s wish for the hospital service to help in assisting death. The methods of textual criticism have been employed to discover how the Constitution and its various Amendments are to be interpreted in a certain context. Others have sought principles of interpretation by allowing the original texts to guide one, and hold that the judges must interpret the Constitution in accordance with the intentions of the founders (Gerber, 171). For a number of interpreters, the underlying structure of the Constitution in the form of an anti-majority standpoint is crucial for how the balancing of interests should be conducted (ibid., 173ff.). Relying in varying degrees on moral philosophical arguments, others apply a more legally dogmatic method, where one identifies the fundamental interests which are to be protected, as for example the interest in being left in peace (ibid., 177–178). A variant of this approach is to try to identify the ethos of the Constitution. It is maintained, for example, that the Constitution ultimately is about tolerance or respect for every citizen’s conscience (ibid., 183). Others students of the law, such as Philippa Strum, seeks to apply a principle of rationally balancing interests where the court argues its way to a balance between different interests, but without really having any instrument to decide why one interest should be given more weight than another (ibid., 179ff.). Gerber’s conclusion from his examination of the various approaches to constitutional theory is that none of them seems to supply unambiguous answers about the supposed right to enjoy protection from the invasion of private life. There are both those who defend this right and those who deny it, in all the schools of interpretation. His conclusion is that “when all of the major approaches to constitutional interpretation can be shown to both support and oppose a right as significant as privacy, constitutional theorists have some explaining to do” (ibid., 185). The problem, according to Gerber, is not to be found in constitution theory’s inability to provide guidance, but in the fact that legal theorists and Supreme Court judges allow themselves to be influenced by ideological and political factors.

118

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

6.5 Focussing on a Careful Legal Process The challenges for constitutional theory raised by the problem of balancing the various interests involved, must be left at that, but there is reason to note an alternative interpretation which de facto takes its starting point in the occasional need to adapt the legal interpretation of the right to privacy, taking into account both technological development and such value changes in society which form the basis for the establishment of new social conventions. In an important sense the constitution is to be treated as a political legal document and its interpretation must therefore be adapted to new circumstances. Balancing the interests involved is fundamentally political in character, even if it must not fall prey to short-sighted political interests or to one-sided party interests. Mark Tushnet a legal thinker who has proposed the model of “legal conventionalism”, represents a view of this kind (Tushnet 2000). The legal idea of private life which is to be found in the judgements of the Supreme Court in various judicial cases, is primarily based upon what the Court regards as the currently established opinions of the American people. According to this way of looking at things, the Court does not possess a moral opinion of its own about what is right or wrong, but describes and gives its authoritative protection to what one interprets to be in accordance with the broad normative views of the citizenry. This entails, as Tushnet points out, that the Court exerts little general influence with its judgements, outside the society whose conventions it identifies and codifies (ibid., 143). This can sometimes imply that one can oppose a majority decision in a member state which has been arrived at democratically, in order to protect a minority point of view. The idea of legal conventionalism as a description of the Supreme Court’s attitude to the Constitution and citizens is, however, open to objection. One objection against this form of legal conventionalism which is put forward by Tushnet himself, is that social conventions are also, in some sense, influenced by the rulings made by the Court. He also points out the fact that judges rulings’ are often not unanimous which indicates that they do not possess a unique capacity, by means of their own observations, to decide what the convention demands. The Court lacks a special capacity to decide the effect of new technical achievements, or to decide the direction in which a change of norms in society is headed. The lack of an unambiguous definition of privacy as an interest of citizens, and the lack of a sufficiently solid normative foundation which can deal, both with technological and social development, implies that the legitimacy of the Court’s judicial decision cannot consist in the fact that one comes to the “right” decision or that one makes a “correct” interpretation of the Constitution. The legitimacy of the judicial decisions and the American people’s trust in them is based instead, according to the variant of legal conventionalism represented by Tushnet, upon how one arrives at its decisions. Of crucial importance is the ability to follow the arguments and reasoning of the court. He does not develop this in any detail, but provides a couple of interesting suggestions (ibid., 162). When the Supreme Court has to make a judicial ruling in a legal case, one goes back to compare the case with similar cases which occurred earlier. There is a tradition of verdicts and legal arguments with respect to a certain case which the Court

6.5 Focussing on a Careful Legal Process

119

has to take account of, in considering a new legal case. It is important that this tradition is carefully illuminated so that one can see how the new case is related to this tradition. The Court ought to (i) give an exact account of the arguments which were adduced for earlier rulings, (ii) describe the technical presuppositions and (iii) account for how one interpreted the value changes and social conventions. One has to follow the tradition of constitutional interpretation within the given domain. There is a conservative aspect to this form of constitutional traditionalism, but the task, as Tushnet sees it, is not to produce as narrow and limited description as possible of earlier legal decisions in order to preserve certain important values or views. Nor is it so that earlier arguments are automatically valid in the new case. The traditionalism which Tushnet advocates, concerns the actual process which led to the Court’s verdict. The Constitution has an intrinsic weight in a democratic society by virtue of its fundamental principles for satisfying the interests of individual citizens and of society as a whole. Thereby the interpretational tradition of the Supreme Court has a particular weight. The legitimacy of the new decisions it makes, however, is to be found, not in whether they agree with earlier decisions, but whether a careful and accurate account is given of the arguments which led to these decisions and in whether we can follow this argumentation in all its relevant details in all the steps leading up to the new ruling. From the viewpoint of legal conventionalism, Tushnet remarks, “we should take the word careful seriously. Rather than describing the outcome of a process, as narrow does, careful describes the process itself” (ibid. 162). The capacity which the courts have traditionally exercised is the capacity to argue rationally towards a reasoned judgement where one is able to follow the development of the argument. It is this capacity which one should stand up for, rather than the conclusions the court draws. Judges do not possess some unique capacity to decide what is right or wrong and they have no interpretational priority to decide which moral views are specially prominent within the population, but they ought to possess a special ability to allow all relevant views, objections and practical considerations to be openly expressed. They should also be aware of, and give an account of, their own views of how their decisions influence the social grounds on which they base their attempt to balance the various interests involved. The enjoyment of legitimacy is based on the fact that the citizen can, on good grounds, assume that all relevant circumstances and arguments have been taken into account and have been weighed in the final decision in a way which is reasonable in regard to the issue’s importance and the consequences of the decision. One should be able to follow the arguments and see that these circumstances are illuminated in a correct way. If this is possible, one can then accept the decision, even if one does not agree about the issue, due to judging things differently or holding an alternative view when it comes to striking a balance between the different values involved. “A properly conducted inquiry, not any specific answers, is all that the American people demand” declares Tushnet (ibid.). This is a thought which is compatible with the insight that citizens participate in a society, where many particular goals and needs must be combined. Tushnet’s model for legal conventionalism is certainly compatible with the form of constitutionalism which Hegel represented and which has been described earlier.

120

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

There is an emphasis on the democratic path leading to the decision, the demand that the citizen must, quite properly, be able to see that their own particular needs as well as those of other people, have been duly considered and noted. The arguments should be presented in such a way that even those who are opposed to a certain decision can see that the decision reached follows from these arguments. Furthermore, the argument should be rational and well informed about technical factors and practical circumstances relating to the activity which is to be regulated and the values which are at stake. From this, there follows a requirement that the process and the reasoning involved in it should be open and transparent. When the great cultural variety of views as to what is worthy of protection as regards private life and the varied views about what constitutes personal matters are taken into account, and the challenges which new technological advances present, regarding the possibility of living in seclusion and participating in society, it becomes impossible to determine once and for all where the boundary line is to be drawn between the private and public spheres. However, by showing respect for the integrity of the citizens by treating them as social, moral and political beings, it is possible to establish forms for striking a balance between the various interests involved, which is based on scrutiny and careful investigations, at the same time allowing the possibility of carrying out a revision when new facts or circumstances present themselves. If the processes for balancing the citizens’ desire for seclusion on the one hand, with participation on the other, are regulated in this way, there is no need to despair, even if developments in the technological sphere and in the climate of values is rapid. The American Constitution and the interpretational tradition which the Supreme Court establishes, cannot, for reasons given, have any direct effect outside the society with whose social conventions one interacts with. Indirectly, there are of course possibilities for influencing things, and as has been shown, there are basic agreements with other constitutional documents such as the French Declaration of human and civic rights. In the Swedish case, the central components are to be found in the Swedish constitution: the Instrument of Government, The Freedom of the Press Act and the Constitutional Right to Freedom of Speech. In the Instrument of Government, liberties and rights are regulated in general. In the Freedom of the Press Act and the Constitutional Right to Freedom of Speech, the specific rights of freedom of speech are regulated. Within the European Community, there is overall a considerable pluralism with regard to views about what should properly belong to the private sphere and what ought to be allowed within the framework of the civic desire for participation in society. These views are reflected in different national legislations. Within this community of national states, there is, however, a source of law which in its form is reminiscent of the American model, which allows the same possibility to adapt the process of balancing between private and public spheres, in taking account both of technical developments and changes in social conventions. There are several international conventions specifying which important values ought to be protected. These conventions have a national significance, inasmuch as they are incorporated into national law. The European Convention for the Protection of Human Rights and Fundamental Freedoms assumes, however, according to Annamaria Westregård

6.5 Focussing on a Careful Legal Process

121

a special status among these conventions (Westregård 2002, 277). Westregård refers to the Swedish Committee on Liberties and Rights which has maintained that the reason for this unique status is that “the European Convention is based upon a preeminently legal ground, involving a court process on applications from individual persons” (ibid.). From a national perspective, the Convention’s significance is dependent on political decisions at the national level. Sweden has decided that the European Convention should be valid as Swedish law. In comparison with other conventions, ratified by Sweden, the European Convention has a special status, because it allows a case to be referred to the European Court of Human Rights. The European Convention contains a number of provisions intended to regulate the individual rights of citizens, and to specify what public interests can be thought to take precedence to them in various circumstances. This Convention has two important, special features which Westregård draws attention to. First of all, the provisions are formulated in general terms, thus allowing for different interpretations so that those nations which have embodied the Convention as part of their national legislation, can adapt the system of rules to the national circumstances. Consideration may be paid to technological development and various changes in social mores. Secondly, it is the only convention of this type where there is a court, namely the European Court of Human Rights, which through its legal rulings can give the provisions of the Convention a concrete meaning and, like the Supreme Court in the USA, can take account of the need for a practical implementation of the law which is responsive to change, but at the same time has a continuity with earlier rulings. There is a crucial difference between the two courts. Whereas the U.S. Supreme Court is a national court where individuals can be tried, in the European Court of Human Rights it is the national states – never individual persons – who are summoned before the court on the application of individuals or other states who can bring an action against one another. Westregård has succeeded very well in capturing the special importance of the European Convention for legislation and the application of the law in that area concerned with balancing private and public interests: “The character of the European Convention as a living source of law which develops and changes through the extensive formation of law enacted by the European Court of Human Rights and European Union’s, makes this particularly appropriate as a source of law in an area where the development of technology is rapid and legislation is faced with new demands on individual liberties and rights” (ibid.). Sweden is a signatory to the European Convention and has incorporated it within Swedish legislation through the Act (1994:1219) on the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has also entered into Swedish law via European Union legislation. Like the American Constitution and its tradition of interpretation, emphasis is placed on the individual’s dual interest in being left in peace as far as his own personal matters are concerned and simultaneously in participating in society in order, among other things, to co-ordinate various particular interests and to enjoy the fruits of technological development in various spheres. Article 8 of the Convention renders this dual interest in two points as follows:

122

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Respect for private and family life is not absolute in any system of law, even if respect for the integrity of citizens, as individuals possessing moral and political authority, ought to be an absolute demand according to the theory which I have presented. It is always necessary to balance the interests of the individual with other interests, both those which in a general way are derivable from the interest of the individual and family in participating in society in various ways, but also those which are directly contrary to those of the individual or family, whether one finds oneself in a majority or a minority position. The problem of balancing various interests has pursued legislators and courts throughout the ages. The problem of taking account of a third party’s interests in striking the right balance is not always so easy in practice, but it does not constitute an insurmountable obstacle. It is regarded as obvious that when the security of a child or woman is threatened within the family, this provides sufficient justification to violate the privacy and peace of the home. Personal security in public places is also looked upon as a legitimate reason for a certain measure of surveillance of the people in the area. In order to protect air passengers, the authorities can – indeed, are expected to – see to it, that no one boards the aircraft, carrying a weapon. The law for protection against infectious diseases is framed so as to protect third parties and give public authorities the right to search for a person, as well as investigate sexual relations. When it comes to society’s need, for health reasons, to keep medical registers, or collect human biological material, it is usually accepted that the obtaining of informed consent constitutes a legitimate ground for establishing a register. For certain medical registers, for example the Cancer Register, it is not deemed necessary to have the individual’s consent and the gathering of information is given legitimacy in law by a parliamentary decision to set up a register. The National Board of Health and Welfare has thereafter been given the task of looking after the register, dealing with questions about extracts from the register, confidentiality etc. In the case of private correspondence or the spreading of other information of a private nature, consent from the person who is affected by this information, is taken as sufficient ground for the acceptability of an incursion into the private sphere. It has been a recurring idea in ethical and legal discussions throughout history, that the individual’s consent constitutes both a necessary demand and a sufficient reason for having the right to breach secrecy, also when it is a matter of sensitive information. Such a view would seem to go rather well with my own theoretical standpoint, where great attention is placed on the fact that the fundamental balancing of interests can be traced to the individual’s desire both to be left in peace and simultaneously to

6.6 The Limitations of the Consent Norm

123

participate in society. But it is not quite as simple as that. The norm of requesting consent can only deal with the problem of balancing interests in a limited way.

6.6 The Limitations of the Consent Norm Warren and Brandeis cited the personal consent of the individual involved, as a valid excuse for publishing things which otherwise would be assumed to be part of their private life (Warren and Brandeis 1809) Strömholm also observes in his comparative analysis of different laws which regulate the right to a private life that “normally, consent deprives an invasion of privacy of its unlawfulness” (Strömholm 1967, 149). According to Judith Wagner DeCew the right to the sanctity of private life should always be presupposed, when one balances various values, which, according to her, accentuates in turn the demand for informed consent from the individual affected (DeCew 2000). H. Tristram Engelhardt Jr puts forward a similar line of reasoning, holding that the legitimacy of a decision to intervene in someone’s private life rests on consent as the crucial ground (Engelhardt 2000). There is, however, a series of limitations concerning the possibility of using consent as the norm for balancing different interests which are thought to be at risk. Consent ought to be well informed in order to be legitimate. This leads to a further two-part question, namely how much information should be given and how does one check that the person who has been informed has also understood the information (Beauchamp and Childress 2001, Hansson 1998). On occasion, informed consent is obtained for measures which are to take place, far in the future. This is the case with some of the work with biobanks. A biosample can be taken from an individual at birth for medical research which will be carried out long afterwards. Parents have no possibility of basing their consent to the sample being taken on more complete information, because the goal of the research has still not been made precise. The same situation applies with other samples which are collected and which can be used for some purpose later on. Another difficulty is determining how long a consent should be valid, and if and how the individual should be allowed to cancel his consent. There are also individuals who are incapable of making the decision which is required for the demand for obtaining informed consent to be meaningful at all (Rynning 1994). These individuals, too, can have an interest in protecting their private lives and can be taken to possess a right, not to be exposed to an unauthorized invasion of their private sphere. Some form of deputized consent is normally applied, but it is far from unproblematic to decide who is to act as deputy and with respect to which questions. A particular difficulty arises in the case of consent to the use of genetic information about an individual, since this information directly affects genetically linked individuals. It is ethically dubious to allow an individual to decide personally about matters which crucially affect the lives of other individuals. To obtain a new informed consent from an individual in connection with a biosample which was taken for an earlier purpose and is to be used for a new purpose, for example a medical research project, has been looked upon by many

124

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

as self-evident. This view is central to the Council of Europe Convention on Human Rights and Biomedicine (Council of Europe 1996) and is to be found, for example, in the Swedish Biobanks Act (Lag 2002:297). To incorporate this idea as an explicit demand in every individual case is, however, problematic. Such a procedure can, in itself, imply an unwanted invasion of privacy. People can wish to be left in peace and not need repeatedly to have to reconsider their position on the issue, once they have initially granted their consent. They prefer to hand over the care and routines involving their biosample to the researchers, subject to the normal requirement of confidentiality. The demand for obtaining a new informed consent can also put the scientific value of the research study at risk, and because of this, the individual may not wish to be asked in order not to reduce the possibility of medical advance and future treatment. I shall return to this specific issue in the last chapter. Graeme Laurie has pointed out another difficulty connected with the communication of genetic information, a difficulty which can be illustrated by the internal inconsistencies in several of the central conventions and declarations intended to regulate the ways of using this type of information (Laurie 2002). The patient’s right to self-determination and consent has become a deeply entrenched legal guideline within medical ethics, and within medical law during the last 20 years. Bearing in mind the previous paternalism in hospital care when the doctor had a virtually autocratic influence when it came to decisions about the care and treatment of patients, such a development is reasonable and natural. Given the enormities perpetrated on people in connection with medical experiments during the Nazi epoch, this development should be seen as marking highly significant moral progress. Respect for the patient’s autonomy, both as a demand and as a goal in health and hospital care and within medical research, entails the recognition of individual people as human beings with moral authority. The patient should have the right to have insight into, and to influence, the medical decisions which affect his or her happiness. It is this completely reasonable way of looking at things which underlies several of the modern conventions and declarations which deal with the problem of how to balance the various interests involved which are associated with making use of genetic information. The problem arises when one tries to apply this view in terms of an absolute demand to obtain explicit and informed consent in every situation. In health and hospital care, there are situations where a patient wishes to refrain from information about a serious illness, because the situation is so heavy to bear. In such situations, it is considered reasonable that the patient should be left in peace, without having to know everything, and be able, with confidence, to leave it to the doctor to make the necessary decisions. Some patients wish to exercise control as long as possible to the very end, while others will surrender this control in order to be able to endure the suffering or attain other values. To force upon the latter information which they expressly do not wish, is a manifestation of paternalism which can be justified by their right to informed consent, but which basically implies a lack of respect for their autonomy as persons with moral authority. A patient may be thought to have a self-evident right to receive knowledge about an increased risk of being ill because of a hereditary disposition. Many patients probably wish to have this information if there is an effective treatment or preventive measure,

6.7 Respect for Private Life as a Complement to the Consent

125

or to achieve the security that comes from attending regular check-ups, and to be able to reorganize one’s life if desired. We can imagine that some patients, however, might wish to continue their lives as usual without this knowledge. One does not want to know, either because as yet there is nothing one can do to prevent the development of the illness, or because one looks upon the knowledge in itself as an extra burden which one would rather be without. The problem is accentuated by the fact that this knowledge can arise because a genetically related individual undergoes a genetic test, whereas those who are affected by reason of their kinship with the person tested, are unaware of it. People who wish to have knowledge about the increased risk arising from genetic inheritance can be informed and experience themselves respected. Those who do not wish to know, cannot be informed. The right to information and consent is incompatible with their right not to know. There is no simple way for those holding information to decide who does not wish to have information. The development within genetic diagnostics thus challenges the rigid policy of always being obliged to give individuals information which affects their life and happiness, and obtain explicit and informed consent. The problem is illustrated by the inconsistency in several of the international and national guidelines in this area. Graeme Laurie has pointed out several such cases. Thus Article 10 of the Council of Europe’s Convention on Human Rights and Biomedicine reads as follows: “Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed” (cited in Laurie, 211). In UNESCO’s Universal Declaration on the Human Genome and Human Rights, article 5c is as follows: “The right of every individual to decide whether or not to be informed of the results of genetic examination and the resulting consequences should be respected” (cited in Laurie, 211). As Laurie points out, informed consent is not an adequate ethical and legal instrument in dealing with this right. Informed consent is the norm in these international documents, as in various national legislation. However, it leads inescapably to an inconsistency or else values which are important to individuals and families are not respected. If people have an interest in, and a right in waiving their need to have access to genetic information, one must look for another approach to deal with the problem of balancing interests. Laurie has presented, and argued in some detail for, such an alternative approach which proceeds from every individual’s right to the protection of their private life.

6.7 Respect for Private Life as a Complement to the Consent Laurie applies his criticism to the far too frequent use of the rule on obtaining explicit informed consent within the framework of a more radical critique of the idea of respect for the autonomy of human beings, which is basic within medical ethics and law. Respect for the patient’s right to have insight into, and the capacity to influence, a decision which affects him – or herself, is, as we have noted, a self-evident basic principle both within health care and in medical research. Laurie is not opposed to

126

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

this, but is critically disposed to the fact that the autonomy principle has acquired too strong a position and too high a priority when balancing interests in this connection (ibid., 182ff.). The principle would also in fact seem to collapse in the face of the problems which arise in the storage and use of genetic information. It is impossible to obtain consent from an individual as an expression of the respect for this individual’s autonomy, and simultaneously respect their wish not to have knowledge about their genetic disposition and the risk involved. Laurie’s criticism would seem to be partially justified, but it proceeds from a limited view of what respect for autonomy means. To force upon someone information they do not wish, or a decision which they do not wish to make, can hardly be looked upon as respect for this person’s autonomy. Laurie’s criticism is well directed, in regard to the frequent use of the rule on obtaining informed consent, a practice which sometimes occurs in accordance with a very formalized system, where people who try to discharge their duty do not seriously reflect about how the patient’s various interests are to balanced with one another. It is easy to agree with him as regards his recurring theme and view that “it is unacceptable in many circumstances to give individuals unsolicited genetic information” (ibid., 210). Laurie, however, misses the target when he uses these difficulties in dealing with people’s desire not to know, to cast doubt on the more basic principle of autonomy. Respect for people’s autonomy does not entail that in every situation, they must be offered information and a choice. It can be in the individual’s interest to waive the possibility of deciding, something which Jon Elster has vividly described (Elster 1984). Elster makes use of the story of Ulysses’ impending meeting with the Sirens on his homeward journey from Troy to illustrate this important aspect of the principle of autonomy. Ulysses sees that he will be unable to withstand the inviting cries of the Sirens and therefore orders his crew to bind him fast to the boat and not release him, no matter how much he later appeals to them, or orders them with his full authority as their commander. A rational person can, in just such a way, wish to face future events, and respect for Ulysses’ decision implies a respect for his autonomy, when seen from a longer temporal perspective than a single episode. The thought corresponds somewhat to the practice of drawing up a declaration which has been developed in various places to offer people the possibility of deciding in advance whether one should have recourse to life-sustaining treatment in the case of terminal illness, in the event that at the time the decision becomes relevant, one is no longer in full possession of one’s faculties. A prior declaration offers a mechanism for communicating a decision to the hospital staff. This practice, which has been established in law inter alia in Denmark, can be criticized because it allows people’s earlier decisions to influence how they are dealt with at a much later point of time, when their wishes in the matter may have altered. One ought to enjoy such a right within reasonable limited periods of time. This corresponds rather well to how people in general try – and are deemed to have the right to – plan their lives. In a similar way, one also seeks to respect people’s will to donate, at their death, an organ to another person in need of it or their body for use in medical education. The arguments about the principle of autonomy do not solve the problem of communicating information to people who perhaps do not wish to have access to

6.7 Respect for Private Life as a Complement to the Consent

127

such information. Ulysses‘ wish for respect for his decision was based on the fact that he was well informed about the future risk – but it shows the need to widen the understanding of the principle of autonomy. To respect people’s autonomy means to allow more scope for their desire to respond independently in a much more fundamental way to various challenges and choices in life. Such a view of autonomy, as was described earlier, agrees very well with the Kantian conception, where emphasis is placed on moral autonomy, not upon the fact that at each opportunity one should be able to make an independent decision. Respect for human beings as people with moral authority implies that they ought to be able to respond, in a more fundamental way, to future events as they themselves would like. It can, for example, entail a possibility for renouncing the intrinsically important right of being informed about a future use of a tissue sample which one has previously donated to medical research and to give a broad consent to future research (Hansson et al. 2006). It might also be thought to imply the acceptance of a model for balancing values in connection with dealing with genetic information in a way which entails that one is informed first when certain conditions are satisfied. Such conditions might include one or more of the following: (i) that the information is reliable according to medical science or tested experience (ii) that the information is linked to a reasonably certain risk of illness, (iii) that the illness is of a reasonably serious kind or is at least non-trivial (iv) that the genetic component has high penetrance, (v) that there is an effective prevention or treatment, (vi) that personal support and regular check-ups are offered. Even if one accepts such a model for balancing the values involved, one still has not solved the problem of respecting people who do not wish to know, despite the presence of a high risk of illness but also of an effective treatment. The question is, however, whether this objection is of theoretic importance or whether it constitutes a real problem in the sense that there are people who actually feel themselves to be violated when they receive information also in these cases, and, assuming that they do, that there are no good reasons nevertheless for proceeding in this way. Probably the majority of people would like to know if there is help and support, but to only receive information of a risk of illness where the estimate of risk involved is uncertain or where the possibility of treatment is lacking, would be looked upon by the majority as undesirable. Lacking empirical support to decide this question, one can, however, not ignore the possibility that there are individuals who do not want to know at all. The question is whether it is reasonable that one can always exercise a right not to know. The problem of balancing between different interests in this matter can be compared with another situation where an individual receives information which he or she was unaware of, and where this communication of information is experienced as an invasion of the private sphere. Imagine a situation where a child learns that the father in the family is not its biological father and that the biological father is unaware of the child’s existence. If the child acquires this information from its mother and visits its biological father, the reaction can take different courses. The biological father can experience the visit as an invasion, and receives information which he would rather be without. He can also react positively. Irrespective of this, it can be right of the mother to give the information, and the intrusion can be defended by arguing that human beings have some degree

128

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

of responsibility for their relations with other people. There is also legal support for this idea that in such circumstances one has the right to demand a certain measure of real responsibility in the form of financial support. This example offers a parallel to the situation encountered in dealing with genetic information. Such information does not merely concern the individual who is visited, but also other individuals who can have reasonable grounds to have knowledge of a relative’s situation, especially when the information deals with an illness which can be treated. It is conceivable that an individual has a duty to receive information, a duty which can be both morally and legally formulated, as in the case with the biological father above. To force on someone information on this ground, however, is contrary to another practice in health and hospital care. There are similar cases where, for example, a person is informed that he or she has an increased risk of a heart attack or cancer, information which also indirectly affects the family and relations, especially if the person involved is the family breadwinner. Relatives can also have a legitimate need for information, but the doctor still does not break his obligation of confidentiality in order to inform the relatives. In this case, the person directly involved is informed, but one does not circumvent him or her by reference to the interests of the relatives. When everything is taken into account, it seems, however, unreasonable that an individual should have an unrestricted right not to know about his own genetic constitution, where the life and happiness of others are vitally concerned. It is conceivable that many people would be receptive to this judgement, if it became a reality and therefore wish to see a model for dealing with balancing conflicts of interest which also takes into account the interests of relatives. The alternative of never giving unrequested genetic information would also conflict with the respect for the individual’s right to independently decide what attitude to adopt to information which affects one’s own life and happiness or that of one’s family. It is morally dubious, both in regard to autonomy and with regard to the health and utility argument, not to inform a relative who has a genetic risk of developing an illness with high penetrance where there is an effective treatment available. Probably those who would look upon a prohibition on giving such information, or a practice which meant that one would never in fact give this type of information, as a violation are more numerous than those who would experience receiving such information as a violation. If one is to deal adequately and comprehensively with this balancing of interests in a way which as far as possible satisfies all parties, one must find a model where the information’s potential is tested against the six conditions mentioned above, also taking into account the family’s need for information. To know that such a model has been established and decided democratically, can satisfy the demand for respecting the individual’s autonomy in the slightly broader sense which I have proposed. Laurie’s argument about the relevance of the principle of autonomy is thus not altogether convincing since he argues from a view of autonomy which is far too narrow. However, he holds that it is not only the principle of autonomy which is inadequate in this context. He also maintains that respect for a person’s private life can deal with the problem of balancing interests in a better fashion, precisely when it concerns the storage and administration of genetic information. Laurie proceeds from two concepts about private life and holds that it can partly be understood as “a

6.7 Respect for Private Life as a Complement to the Consent

129

state of non-access to the individual’s physical or psychological self,” and partly as “a state in which personal information about an individual is in a state of non-access from others” (ibid., 6) The first state corresponds to what we would call the spatial private sphere (spatial privacy) while the second state covers private information about an individual (informational privacy). From these concepts Laurie derives a unitary definition of “privacy [as] a state of separateness from others” (ibid.). The interest of individuals in seeing that sensitive information is protected, as well as having a possibility of exercising a certain control on how medical information about them is used, can be highly relevant in a medical context. To limit the protection of private life to what concerns information about an individual, however, is not sufficient. Laurie agrees with an earlier criticism of such a perspective with regard to the protection of life, that it is far too limited. A patient is also interested in protection against improper physical or psychological interference in the form for example of a wish not to have to submit to treatment which has not been authorized or to continue with undesired, medically hopeless treatment. To observe a patient in an exposed situation can also constitute an improper intrusion quite independently of whether one acquires and passes on information about the patient. Laurie looks upon access to a private sphere as a fundamental human interest which can be observed in all human cultures and he gives two different reasons why this interest ought to be protected. Firstly, he describes access to a private sphere as an obvious need in all human beings and the existence of this need compels us to go to some length to recognize it as something important and noteworthy. Secondly he holds that respect for this need is based upon what he calls human dignity (ibid., 28ff.). His conclusion is that there is “a zone of privateness surrounding the individual that cannot and should not be invaded without due cause” (ibid., 64). Laurie’s theory proceeds from the idea that private life is a state where the individual is separated from others. Other accounts, including my own, can analogously be used to argue that respect for human beings’ private and family life ought to have a certain dignity which for each and every human being is an important property. In encountering another person’s private sphere, one should halt. Starting from this legitimate interest, Laurie holds that the individual ought to be given the possibility of exercising the right to say no to general insight. His approach, however, becomes far too negative, and he does not treat seriously the fact that individuals have a dual interest, both to enjoy their seclusion in peace and to participate in the public sphere. In my theoretical approach this dual interest is treated more seriously and the property in a social being which causes outsiders to halt is this being’s integrity, the emotional territory which constitutes a prerequisite for being able to live a social life at all. Before this fundamentally emotional territory, which forms the individuals’ special form of their dual goal, outsiders halt for two reasons. For moral reasons, primarily because this territory is a significant and fundamental property for the individual, but in the case of a moral community, also out of respect for the individual as a being with moral and political authority. Laurie’s theory rests principally on the wish – reasonable in itself – to respect a person who does not want to know about his genetic disposition or risk. His theory, however, does not do justice to other interests which are of crucial importance to the same individual, such as being able to enjoy the fruits of medical research and

130

6 Privacy and Integrity from the Perspective of Jurisprudence and the Law

having access to information when there is an effective treatment, either for the patient or because there is a legitimate interest for the family to have access to this knowledge. A possible way out of this dilemma is instead to begin by formulating the respect for the individual’s integrity in such a way that the individual is given insight into how the various interests are balanced, and a possibility of exerting influence in this matter. The Swedish Act on the ethical review of research involving humans provides such a possibility in the area of research (Lag 2003:460). According to this Act, special Research Ethical Committees are set up which consist of researchers and laypersons, under the chairmanship of an experienced judge. The committee’s task is to balance the scientific value of a research project against the risks which people acting as experimental subjects may run. The committee constitutes a public authority, and thus forms part of a public system which gives insight into the principles involved in balancing priorities, as well as the possibility of democratic control via different supervisory organs. The Riksdag can alter the law when it is necessary and the government can request the supervisory organs to issue new regulations for how the work is carried out. The norms for balancing various interests and the rationale behind decisions must always be public, even if confidentiality protects the individual in a particular case. The demand for informed consent is well established within research. The research ethical committee has, however, the possibility to waive this demand in balancing scientific utility against the risk to people involved as experimental subjects. In a corresponding way one could set up a committee for dealing with the obligation of confidentiality in health and hospital care in those cases where the doctor out of respect for the family or other parties involved considers it necessary to bypass the patient in order to give important genetic or other medical information. Such a committee would be able to deal with the right not to know on the basis of the six criteria present above. Annamaria J. Westregård has, in connection with a legal discussion of privacy issues at work, compiled a survey of how the concept of privacy is used in Swedish law (Westregård 2002, 45ff.). The concept is used in several different senses and often without a precise definition. Westregård’s conclusion is that there is no uniformity in the use of the concept of privacy. “The same word, personal privacy, is used to denote different types of privacy, whether its physical or psychological aspects. Shifts in meaning occur in the use of the concept. Sometimes it is used in sense of being a right and sometimes in the sense that the individual has a right to privacy” (ibid., 47). Westregård holds that a resolution passed at the conference of the International Commission of Jurists in Stockholm in 1967, has played a major role inter alia for the work of the Data Law Commission’s work. The work of the Commission of Jurists has been previously cited in the present work, in reference to Stig Strömholm’s report from the conference (Strömholm 1967). In the resolution, one sought a common definition on the basis of such concrete measures which can be considered to constitute a violation of the individual’s private life. According to this resolution, such violations can be divided into three groups: “(1) invasion, both physical or otherwise, in a person’s private affairs, (2) the collection of information about a person’s private affairs and (3) the publication

6.7 Respect for Private Life as a Complement to the Consent

131

or other exploitation of the material about a person’s private affairs” (Westregård 2002, 47). Westregård herself prefers to look upon privacy as a prima facie right, that is to say a right which invites a certain respect, but which in practice must be balanced against other rights and interests. It is not said explicitly what interest such a right is intended to protect, but the emphasis is on the protection of the private sphere and on personal affairs. Implicitly, however, Westregård points to the interest in insight and participation in public life with others which society offers, because it is this latter interest which demands legitimate interference in private life, despite the fact that the right to private life is intrinsically important. In my view, one begins legally at the wrong end, by first focussing on the right to private life and thereafter, and only implicitly, including other civic interests. The legal conception would gain in clarity if, instead, one began with the status of citizens as persons with moral and political authority, and every individual’s right to be a citizen with political insight and influence. On the basis of the liberties and rights which are granted to every citizen in accordance with the central constitutions of Western democracies, the basic underlying attitude to respect for citizens’ integrity and the right to a personal protected private sphere, is positive. Respect for the sanctity of private life is a consequence of respect for the individual as a person with moral and political authority. Respect for a citizen’s integrity implies first and foremost a recognition of his or her right, as far as possible, to have insight into, and influence upon, the way the line is drawn between life in the private sphere and life in the public sphere. Law and the exercise of authority is legitimate inasmuch as it is possible for the citizen to assume on good grounds that all relevant circumstances and arguments have been duly noted and weighed in a manner which is reasonable, given the importance and consequences of balancing the relevant factors. One should be able to follow the arguments adduced and see the different circumstances and arguments illuminated in a correct way. On such a basis one should be able to accept a decision, even if one disagrees about the issue, or in the end comes to another judgement. Transparency, insight and accuracy with respect to the account of the practical circumstances and the values at stake, form the most important prerequisites to create trust in the judicial process or in an authority’s examination of an issue and its decision. The norm of consent has been given a relatively strong role in providing legitimacy for incursions into a citizen’s privacy. In certain circumstances, however, one does not bother about it. As noted, certain medical registries, for example the Cancer Registry, have been created by the parliament. It is unreasonable to uphold the consent norm unrestrictedly at an individual level. The individual must have the possibility to allow the procedure of balancing between different interests to be an object for examination in a court, a parliamentary assembly, or in the case of medical research, in a research ethical committee.

Chapter 7

Integrity as a Quality Worthy of Esteem and Respect

Every organism which has a social life relies upon emotional equipment by means of which contact and intercourse with the world round about it is regulated. Individuals react to the invasion of their own emotional territory with different types of behaviour. These behavioural variations between different individuals may be highly dependent on the evolutionary background, cognitive capacities, differing forms of environmental influence and cultural factors which have influenced the cognitive processing of the basic emotions. The basic emotions of fear, embarrassment and pride are the same, but the territory, for reasons which have been given, has been shaped in different ways and thus there is a difference in behaviour to be found among different individuals. However, in the case of each individual, one can expect sufficient stability in behavioural reaction to allow one to speak of an individual property. For human beings, it seems more natural to speak of a personal property. Integrity is a property which determines how individuals interact with the world about them. Whoever obtains insight into an individual’s personal affairs without permission from the individual concerned is guilty of invasion of their integrity. One speaks sometimes of a person with a strong sense of privacy. It can be thought to correspond to an individual with relatively rigid boundaries who is unwilling to let another person come too close. The property of integrity is so valuable for the individual and for the individual’s participation in a social context, that there is reason to halt and go no further. One does not invade the person’s integrity without good reason. However, there are such reasons, and they can either be related to the individual’s own interests, or to other people’s interests in the society of which they are part. If we respect people as persons with moral and political authority, one ought to give every individual insight into how the balance between the various interests is struck and also the power to influence this procedure.

7.1 The Continuity of the Concept of Integrity Integrity is a property which one must not invade without good reason, but in ordinary language one attaches something more to the concept of integrity. It is regarded also as a property which influences how an individual acts in the social context and M.G. Hansson, The Private Sphere,  C Springer 2008

133

134

7 Integrity as a Quality Worthy of Esteem and Respect

how other individuals look upon him or her. To have integrity is usually looked on as a quality worthy of respect, in the sense of a feature of character which calls forth admiration and respect from other people. In ordinary language use, it would seem that it is this property which is meant when one calls someone a person of “great” integrity. Such a person is expected to stand by what he says, a person whose words and actions are in agreement and someone who will not be tempted to break a moral or legal rule for personal gain. I shall return to these different meanings with reference to the discussion which has been stimulated, above all, by Bernard Williams (Williams 1973, 1981/1985, 1995). Within law and the philosophy of law, integrity in this sense is usually equated with incorruptibility. It would seem that there is the same tendency to misunderstand the concept of integrity here, as we have seen earlier by one-sidedly emphasizing one of two dimensions, by focussing on the desire to protect one’s own sphere while neglecting the interest in being able to participate. In this particular case – integrity in the sense of incorruptibility – it is a matter of protecting our own convictions, failing to note new insights and lacking sensitivity about the consequences which affect other people concerned, as a result of exclusively protecting one’s own perspective. According to the dominant way of looking at things, people with integrity do not glide along with the stream nor do they easily surrender their principles. I propose to suggest another formulation of the concept where attention is paid to the other dimension. A person with “great” integrity is also a person who is able to accept new arguments and insights which are encountered through participation in a changeable society where one’s own personal conviction must coexist with other people’s convictions and views. A person of great integrity is undoubtedly someone who does not frivolously abandon established standpoints and principles, but who is at the same time prepared to take account of new insights when balancing interests, and who is willing to make use of good arguments. The lack of such a capacity is more a testament to pigheadedness and narrowness of outlook than to integrity. In the English-speaking world, one has distinguished between the different meanings of integrity, as something that one respects, and a property of character that one can possess. The corresponding theories about the sanctity of private life on the one hand, and integrity as something worthy of respect on the other hand, never intersect. In Sweden, the same word (integritet) is used in both contexts, but the theoretical background differs depending on what sense of the word is used. In practice, the concepts associated with the word are understood as in the English speaking world. In the approach which I propose, the two senses are linked. There is a continuity between the integrity which can be violated and the integrity which is expressed in behaviour and which is worthy of esteem and respect. This continuity can be demonstrated by noting that in both cases it is a matter of an individual or personal property with a strong emotional background. A person, who in some social context is caught “read handed” and certain defects in his character are exposed, reacts with embarrassment and perhaps with shame. It can, for example, be a case of politician who has failed to deal correctly with his or her annual tax self-assessment, a researcher who is suspected of having manipulated his data or the account of sources, or a civil servant who is charged with taking a bribe. People with integrity

7.2 Being True to Oneself and Others

135

react emotionally when shortcomings in their own character are noted. People who simply proceed without batting an eyelid, are looked upon as emotionally cold and devoid of integrity. To lose our integrity implies an emotional loss, and even the thought of this loss gives an emotional reaction.

7.2 Being True to Oneself and Others A great part of theorizing about integrity as a respected quality proceeds from the idea that all individuals strive to be true to themselves, their own history, their dispositions and moral undertakings (see McFall 1985, Taylor 1985). Lynn McFall gives a coherence criterion which implies that the property of integrity is characterized by the fact that the principles and obligations which individuals act upon, are internally consistent, and there is agreement between principles and actions (ibid., 7). According to McFall, personal integrity presupposes that (i) individuals associate themselves with a collection of principles and obligations as a guide for their actions, (ii) that in the event of challenges and temptations, they continue to hold these principles and obligations and (iii) that this is done for genuine reasons and not as the result of self-deception or because they are trying to protect their honour for its own sake (ibid., 9). In several works, Bernard Williams has criticized ethical theories which include a claim to universality as a basic demand of morality (Williams 1973, 1981/1985, 1995). Utilitarianism is a specific target of this criticism, but Kantian ethics also comes under fire. Both classical utilitarianism and deontological theories of a Kantian type demand, according to Williams, a moral consideration which implies that individuals must abandon or have insufficient room for their basic, identity-creating moral convictions and projects. Kant does not allow sufficient room for human beings’ own wishes, needs and convictions and their identity as social and moral beings. Utilitarianism, with the same effect, bundled together the individual with all other individuals in seeking the goal of optimal total welfare. In my view, the criticism is partly justified. In both cases, one has failed to take into account the fact that in their actions human beings are often driven by a fundamental conviction, or by a particular perspective on life. It can be a profound experience which one has had, and as a result one interprets everything which subsequently happens in the light of this experience. There are undertakings, relations and views which are associated with the individual’s experience of meaning and coherence in life. Williams calls this type of undertaking, ground projects (Williams 1981/1985, 12–13). It is not a question of a coherent view of life in the sense of Anders Jeffner or Carl Reinhold Bråkenhielm nor a comprehensive life plan in the sense of John Rawls (Bråkenhielm and Hansson 1995, Jeffner 1988, 1992, Rawls 1972/1985). It can be a special moral conviction, or a single political issue where there is very strong personal involvement, and agitating with respect to such a conviction or issue is intimately connected with the individual’s self-image and self respect. This involvement and behaviour have a powerful motivational role in how and why the individual acts in different ways.

136

7 Integrity as a Quality Worthy of Esteem and Respect

If we wish to take account of people’s personal involvement as an important factor in ethics, both utilitarianism and Kantian ethics are inadequate according to Williams: “A man who has such a ground project will be required by Utilitarianism to give up what it requires in a given case just if that conflicts with what he is required to do as an impersonal utility-maximizer when all the causally relevant considerations are in. That is a quite absurd requirement. But the Kantian, who can do rather better than that, still cannot do well enough. For impartial morality, if the conflict really does arise, must be required to win; and that cannot necessarily be a reasonable demand on the agent” (ibid., 14). The universalistic claims have the effect that the obligations which can be considered as constitutive for the individual must be given up. The individual becomes a stranger in the world where he or she must discharge their moral obligations. Williams constructed an example using a creative, somewhat romantic and bohemian artist, Gauguin who is faced with the decision on whether to devote himself to being an artist, knowing full well that he can only retrospectively evaluate if he made the right choice in terms of artistic success. It may perhaps not even be he himself who is able to decide the matter, but rather other people who will posthumously pass judgement on whether he made the right choice or not. The choice of developing his artistic talents will extract a price in terms of lack of time and attention for the family he loves. Williams uses the Gauguin example to argue for three theses, two of which are of particular interest in the present context (Williams 1981/1985, 1995). His first argument is intended to show that it is not a question of a moral decision where the artist calculates the possibility of succeeding and weighs it against other interests which cannot be satisfied. Ethics, according to Williams, does not enter the picture at this stage; it is a decision which is entirely decided by what the painter experiences as a basic and personally profound project, the success of which largely rests on circumstances upon which he has no influence. Secondly, Williams holds in his polemic with his critics, the artist’s choice can very well be compatible with an insight that it is associated with a moral cost. According to Williams, there is always included in a broad understanding of ethics, a concern and an interest for those who are affected by one’s actions: “Any conception of the ethical will include in some form a concern for people directly affected by one’s actions, especially those to whom one owes special care. . .” (Williams 1995, 244). The artist’s choice affected his family who had to pay the price, and perhaps it was accomplished at the cost of other important interests. For Williams, the point is that despite this cost, the fact remains that world around and those who have lived to experience his art, are grateful to the artist for making his choice. There are actions which conflict with the prevailing moral code and which involve a high moral cost, but nonetheless ought to be carried out. It is important to seek models for ethical and political decisions which take into account and wisely balance different interests, but both in ethics and politics people with a certain disposition are also needed, namely those who do not simply act as puppets while others pull the strings or design systems, but who on the basis of a strong personal commitment stand up on behalf of their basic life project, which may have a profoundly moral motivation. The following story is taken from reality and was told to me by a

7.2 Being True to Oneself and Others

137

refugee welfare officer in a Swedish municipality. A Latvian refugee had come to a Swedish refugee reception unit. He had contacts in town A and wanted to go there to seek his fortune. At the refugee reception unit, he received the following response: “I’m sorry. There are no available jobs or accommodation there. Stay here instead. You will soon be able to go to another municipality.” The refugee, however, did not let matters rest. He went to municipality A on his own steam and got himself both a job and accommodation. Then he went to the municipal social welfare office in order to obtain a loan so that he could pay the rent since payment was demanded in advance. The social welfare officer there told him: “I’m sorry but we cannot do that. There are no jobs or accommodation here. I shall give you a ticket so that you can return to the refugee reception unit.” Finally, the refugee welfare officer was able to intervene and adjust the system of rules. The system was there for good reason and the officials were beyond reproach according to the rule book, but they lacked important qualities such as courage, the ability to stand for one’s belief in public, and moral sensitivity about what was at stake. The refugee welfare officer, who was also an immigrant, found it easier, perhaps because of personal background and experience of being vulnerable, to see more easily what had to be done, and possessed the courage to bend one or two of the rules. There was a cost to this in terms of justice and the rule of law. Nevertheless most people would prefer a society with individuals who acted in such a manner. For that reason, social systems and social institutions must be designed in a way which draws attention to and favours such a property. Williams defends in a corresponding way the artist’s choice as being right, despite the moral cost. The artist showed signs of the quality of integrity which is worthy of respect. The social welfare officer did not, in spite of being incorruptible. According to Williams, the trouble with most philosophizing about human moral duties, is that one has lost sight of the individual who has to discharge these obligations, and who, in some reasonable psychological sense, must be fashioned in such a way as to dare to live up to them or reject them. The processes which can be thought to steer rational thought and action “are transcendental to experience and do not actually take up any psychological room” (Williams 1981/1985, 51). Focussing on the quality of integrity as something valuable and worthy of respect implies an alternative to this way of thinking. For Williams it is not a question of including an Aristotelian style ethic of duty as a way of solving the problem and providing more room for human qualities of character in ethics. He rejects the Aristotelian idea of integrity as a form of personal virtue associated with the capacity for self-control. “It is rather that one who displays integrity acts from dispositions and motives which are most deeply his, and has also the virtues [such as self-control and courage] that enable him to do that” (Williams 1981/1985, 49). William’s account has been highly influential, but has also been much criticized. From both the Kantian and Utilitarian camps, the message has been that an important part of the individual’s self-image may be bound up with the fact that one is striving for a universalistic morality (see Ashford 2000, Calhoun 1995). A person with integrity is characterized according to these critics precisely by the capacity to take account of other people’s interests and the consequences of their actions as a part of their own profound personal commitment.

138

7 Integrity as a Quality Worthy of Esteem and Respect

Utilitarianism does not deny the importance of personal convictions and projects, but maintains that moral concern presupposes an expanded perspective where account is taken of other people’s lives and well-being. There are probably only a few individuals who are prepared to offer their own welfare in order to devote themselves unselfishly to working to get rid of poverty and injustice. Such people are, in Elizabeth Ashford’s phrase, extraordinary altruists. People of integrity, conscious of their own insufficiency, ought, however, to feel a pang in the heart. “It is appropriate, however, that the rest of us who fail to do so should feel to some extent morally compromised, by our awareness that we are pursuing our personal projects at the cost of failing to do all we can to help other’s vital interests, and that from a moral point of view every person’s interests are of equal weight” (Ashford 2000, 435). Nor did Kant deny the significance of personal life goals. Williams’ critique, in my opinion, is wide off the mark. Kant looked upon the subjective maxims of action which the individual seeks to justify in confronting other competing principles and goals of life, as profoundly rooted in the individual (Hansson 1991, 96ff.). The crucial question is how these goals can be combined with the idea of coexistence with other individuals’ goals and projects in what Kant calls “the Kingdom of Ends”. What he proposes is a number of formal demands, such as not allowing compulsion, violence or deception as principles for balancing interests. Kant’s formal demands have been interpreted as being without substance, but that is exactly the price which must be paid if human beings’ profound projects are to be taken into account in all their variety. The point of departure is a profound desire in individuals to expand their own far too restricted perspective to embrace those who are to be found outside their own social territory. There is every reason to feel humble before one’s personal incapacity to perceive and value people’s different ways of living and flourishing. Kant’s ethics bears this in mind but raises the question of how one, despite this, can create a morality which will form the basis of ethical and political decisions where different interests can be reconciled. Many solutions of this problem have been proposed (see e.g. Rawls 1972/1985, 1993) but it lies outside our immediate concern. It can be harder for a Gauguin to escape in a utilitarian model of moral concern and perhaps a little easier in a Kantian one. This however is not of crucial interest here. Williams has drawn attention to an important aspect which has partly been lost sight of in both moral traditions. Society would be a worse place to live in, if there was no room for individuals with strong convictions and a large measure of civil courage. The weakness in Williams’ argumentation is, as I see it, the somewhat one-sided focus on the individual’s own project. It is not desirable to have people with rational and emotionally well-established convictions who are prepared at any price to achieve a certain goal. People who give up their own basic life project and instead devote themselves to protecting their family and supporting their children, are also worthy of respect and admiration. It is not simply those who are directly involved who have reason to feel gratitude for such a choice. It is both reasonable and necessary to take into account the individual’s psychological possibilities, but then one ought also to seriously take into account the profound dual desire for both seclusion and participation.

7.2 Being True to Oneself and Others

139

The idea of integrity as a result of the individual’s striving after a unified self-image, a loyalty to his own fundamental convictions and the maintenance of personal purity and irreproachability – a refusal to dirty one’s hands – has been dominant in the philosophical discussion. Cheshire Calhoun also mentions Harry Frankfurt’s idea of wholehearted involvement as an aspect of the same fundamental perspective (Calhoun 1995). The problem with this view of integrity is that one fails to do justice to the ambivalence which is often characteristic of individuals’ attempts to orientate themselves and to choose their way in a socially complex world. Already at a fundamental psychological level individuals try to accommodate conflicting impulses. They shape their emotional and social territory to deal with environmental challenges, and to relate fruitfully to other individuals and their interests. Individuals seek simultaneously to satisfy their profound interest in both seclusion and participation. The moral requirement of reconciling one’s own interests with the interests of others arises, when they try to live in a community with other people, whether in the family, in the group or in society at large. For a person with integrity it is not a question of only or primarily going unstained through life, but of how one can, in a reasonable and correct fashion, balance conflicting interests. There are occasions when also people with integrity must pay the price of having to dirty their hands in order to gain something else of value. Failing to indulge in a white lie to save a person’s life is not a sign of great integrity, but shows a far too strong fixation on one’s own irreproachability. Never to pay a bribe can be a sign of strong principles, but it is not particularly honourable to keep to this principle if it is the only possibility of helping some other person, for example to have hospital care in a society which is riddled with corruption. Compulsory methods can in certain cases be the sole possibility for protecting other individuals from a violent person, and in certain circumstances to protect an individual against himself. As Onora O’Neill has pointed out, lies, force, compulsion or deception can never be justified as theoretical presuppositions for action, but under certain circumstances, they also have to be defended in a civilized society (O’Neill 2002, 98). The idea that individuals’ own opinions, views and moral convictions should enjoy a status of being untouchable, of being left in peace and unquestioned, seems noteworthy. However, the majority of people would undoubtedly experience it as a deficiency, if they did not have the possibility of changing their view in the light of new facts or of taking into account moral interests which go far beyond their own welfare. To have several important ground projects instead of just one, is both common and reasonable, also in the case of people with integrity. There is, however, an important element in this perspective with regard to integrity, namely that individuals with this property which is worthy of respect, do not so easily surrender their basic values, their view of life and their important life projects. People who change their opinion in whatever direction the wind is blowing, or with respect to what best benefits their own interests, are looked upon as opportunists, not persons with integrity. Cheshire Calhoun has proposed that it is not irreproachability as such, or a strong commitment to principles, which determines the degree of integrity (Calhoun 1995, 250). The problem arises for individuals who too easily surrender their own values and principles. “People without integrity trade action on their own

140

7 Integrity as a Quality Worthy of Esteem and Respect

views too cheaply for gain, status, reward, approval, or escape from penalties, loss of status, disapproval. . .they trade their own views too readily for the views of others who are more authoritative, more in step with public opinion, less demanding on themselves. . .” (ibid.). Integrity can be lost but we do not lose it by taking account of other vital interests, but rather by doing it almost carelessly with respect to our own life projects and principles. If the property of integrity is to be described as an esteemed character feature, it requires a certain robustness in convictions, but also a readiness to borrow arguments and reconsider opinions in the light of new conflicts of interest and new facts.

7.3 Integrity as Both a Personal and Social Property Calhoun has suggested that integrity, as well as being looked upon as a personal virtue, should also be regarded as a social virtue. It is not simply, nor chiefly, about the relations the individual has to him- or herself, as in the case of the personal virtues of moderation, courage, self control and so on. Social virtues are about the character of the relations which one has with others. To act with integrity, as a socially important property, is not one-sidedly associated with a defence of personal views, or personal identity, but with standing up for something in a social community which values what one does, a community and a value which the individual person esteems. Calhoun believes that there are components both of personal and social virtue in the property of integrity. “To the extent that integrity is, indeed, a personal virtue, this account of the significance of standing by one’s principles and values rings true. What drops out of these accounts, however, is the centrality of standing for principles and values that, in one’s best judgement, are worthy of defence because they concern how we, as beings interested in living justly and well, can do so” (ibid., 254). Here is a link to both Kant and Hegel with their strong emphasis on the fact that individuals live in a social context with other co-legislators of the moral law, to employ Kant’s terminology. Individuals understand when they become objects for social recognition that their own judgements and values play a role, and it is important for the common interest in the group or society. Integrity is a property worthy of respect only in a social context in circumstances where both the individual personally and the others are taken seriously. As Calhoun says, it is “. . .when what is worth doing is under dispute, concern to act with integrity must pull us both ways. Integrity calls us simultaneously to stand behind our convictions and to take seriously other’s doubts about them” (ibid., 260). Now the personal virtues are not so static as Calhoun would seem to believe. In the development of personal virtues, such as moderation, self-control and courage, there is an important component which has the role of dealing with ambivalence and conflicting interests. Aristotle pointed to a dynamic mechanism in the development of the personal virtues, a mechanism which would seem to be closely related to the property which Calhoun associates with integrity as a social virtue where the individual both defends his or her own perspective, but also is able to relate

7.4 In Contact with the Internal Goal of an Activity

141

to other individuals in different types of social relation. The virtues represent for Aristotle those aspects of character which determine how well one can find the balance between different emotions such as joy, fear and confidence (Aristotle NE, 1105b5-28). A person who possesses courage finds the mean between overconfidence which leads to rashness, and fear which leads to paralysis. The individual tries to put himself between two extremes in order, by so doing, to hold them together. There are reasons both for confidence and fear and individuals train themselves to be courageous by wisely and in accordance with their own possibilities, finding the balance point or mean (see Grön 1980). In a similar way, there are reasons for all socially living beings to find their own balance point, but this is true also of those who seek to find a moral balance between two conflicting interests, where both can seem compelling.

7.4 In Contact with the Internal Goal of an Activity Integrity as a property worthy of respect implies that one behaves in a certain way in a social context. In different social contexts there are different rules and norms which provide support for how the individuals involved should deal with sometimes conflicting interests. A person who carefully follows all the rules and does not renounce established principles can be looked upon as a person who inspires respect and as a person of great integrity. In order to qualify for the property of integrity, however, as has been pointed out earlier, one expects something more than a person who merely slavishly follows these rules. The rules ought to have a profound basis in the person; in addition they must not be easily discarded, although at the same time, they must allow for revision. The rules ought to be profoundly based in the activity or practice itself; to use Alasdair MacIntyre’s terminology, they ought to express the activity’s inner goal (MacIntyre 1985). MacIntyre has illustrated what is meant by an activity’s internal goal by drawing an analogy with chess (ibid., 187ff.). He asks us to imagine a parent who wishes to teach a 7 year old how to play chess, despite the fact that the child personally has no real interest in learning to play. The child, however, is fond of sweets and is informed that if she agrees to play chess together once a week, she will be offered some sweets. The parent also explains that he is going to play in such a way that it will be difficult but not impossible for the child to win. Every such victory will result in an extra portion of sweets. Given this motivation, the child will play chess and play to win. As long as she is only tempted by the lure of the sweets, it plays no role for the child if its victories are based on fair play and the rules of the game. If she can obtain sweets more rapidly by cheating, that is sufficient reason for doing so. However, the parent hopes that some day the time will come when the child will see the value of chess for other reasons than the external reward. By acquiring a special analytical capacity, strategic imagination and intense concentration, the child acquires reasons not for just winning on one occasion, but for mastering and developing herself in relation to the demands which

142

7 Integrity as a Quality Worthy of Esteem and Respect

chess makes. If the child now cheats, she does not merely cheat the other player but also herself. The child has experienced the game’s internal goal. We can imagine that a person with the property of integrity behaves with respect to the activities he participates in, in an analogous way. There are internal goals which determine the activity itself, and at the same time constitute the basic driving force, the life project in Williams sense, for the person who participates in this activity. As an example, one could take the case of a researcher’s integrity. There are a great number of both scientific and ethical norms which a researcher must take account of. The number of ethical codes and, in some cases, legislation affecting research has expanded rapidly during the last 50 years. To some extent, it seems to be based on an overestimation of the importance of rules and an underestimation of the importance of focussing on the character of the researcher and the activity’s internal goal. A researcher can probably win glory and renown faster by manipulating his primary data or his interpretations of research results. Through new effective statistics programs, it is possible to adjust the confidence interval so that an observation that deviates, a so-called outlier, does not show up in the presentation of results. In this way, a hypothesis can be verified with sufficient certainty. The deviant observation which points in quite another direction, simply does not appear in the presentation of results. But the researcher knows that it is there. Should the researcher adapt to this kind of scientific (mal)practice? Other researchers adjust their statistics programs in this way. If researchers are thus able with a wave of their statistical wand to spirit away inconvenient data, they are not breaking the established norms. But, has such a researcher perhaps missed the fundamental idea with research, scientific activity’s internal goal? Perhaps this deviation is sufficient to falsify the hypothesis which has been put forward. If the aim of research is to produce new knowledge about reality, the occurrence of sets of deviant data should be dealt with in a more responsible manner. Every outlier ought to be explained and before this is accomplished satisfactorily, one cannot ignore the deviant observation. A researcher with integrity has seen the value of scientific work in terms other than external reward in the form of increased academic merit or publicity. Rules for research can possibly get rid of obvious abuses in the form of dishonesty, but a person who has not discovered and is incapable of appreciating the internal goal of research, will be unable, to any higher degree, to contribute to the development of science. Another example within research concerns the publication of scientific results. Within the medical sciences it is, for example, quite usual that several authors publish jointly. Each and every one of the various authors has contributed to the final result, and by virtue of their scientific contribution, they are named as co-authors of the publication. For a research group it can be worthwhile if several of the group’s members receive scientific recognition in this way. Researcher A writes an article and invites B and C to be cited as joint authors, even if they have not in any substantial way contributed to the result. In return, researchers B and C invite A to be named as co-authors in their publications. This benefits all of them; they acquire higher academic merit; the research group is able to exert much more influence; its work becomes wider known; and there is increased funding available for their

7.4 In Contact with the Internal Goal of an Activity

143

projects, since it is linked to the number of publications per researcher. Everyone in the group profits from this and if all do it, why should the individual researcher not participate in the race to publish in a similar way? One does not breach the social norms of research; but is it compatible with the internal goals of research? These internal goals give priority to new knowledge and recognize those who have helped to produce this new knowledge. Whoever has made a scientific contribution should be given recognition for his contribution, either in the form of appreciation, or in the form of negative criticism where there are grounds for objections. There are well established ethical rules for the publication of scientific results (see ICMJE 2003). They can possibly put a halt to obvious abuse but for researchers lacking integrity it would seem to be of limited value. Such people can easily find justification in the form of short-term gains or social adaptation to the present ‘publication culture’ as a sufficient reason, but they deceive themselves. For a researcher with integrity there are internal values which one cannot easily surrender. In a similar way, one can imagine there are internal goals for other forms of activity which provide guidelines for a politician with integrity, a journalist with integrity, a civil servant with integrity and a judge with integrity. Probably some people are born with part of the emotional equipment which is a prerequisite for being able to display integrity: a fundamental mental capacity in the form of an emotional territory, which sees to it that a human being can experience internally with a certain measure of embarrassment the ambivalence which arises in the face of conflicting interests. In their inner being humans carry with them the emotional capacity which is a prerequisite for being able to stand for something which they believe to be important, the capacity for pride. The property of integrity has the social scope to act already at a fundamental biological emotional level, because the emotional territory is developed as a function of the need to be able to master the surrounding environment and develop different types of social relations. This provides a basis for seeking a partial explanation to why integrity is to be found as a property in different degrees in different people. To a still greater degree, it would, however, in the case of human beings seem to be concerned with how far the individual has seen – and is capable of appreciating – the internal goals of various social practices, and how the individual has integrated these goals with his or her own life project. By training researchers to be able entrepreneurs who with a high degree of automaticity follow research’s rules and social norms, one can attain short-term success in the world of science. Taking a longer view, and in order to produce researchers of great integrity, one must make it possible for them to see and appreciate science’s internal goals. Now one can very easily imagine social activities where the participants are bound together by strong ties to the internal goals, but where the activity in itself is immoral. John Rawls points out that “. . .. The virtues of integrity are virtues, and among the excellences of free persons. Yet while necessary, they are not sufficient, for their definition allows for most any content: a tyrant might display these attributes to a high degree, and by doing so exhibit a certain charm, not deceiving himself by political pretences and excuses of fortune” (Rawls 1972/1985, 519). With the help of various religious or ideological blinkers, terrible crimes against human

144

7 Integrity as a Quality Worthy of Esteem and Respect

beings are committed. Damian Cox, Marguerite La Caze and Michael P. Levine have pointed to historical leaders such as Hitler and Pol Pot in order to underline the argument that it is not sufficient to have integrity only in a formal sense (Cox et al. 2003, 58). These men stood, with a certain pride one imagines, for their basic life project, but exhibited no indication of a capacity to experience ambivalence or interest in giving scope to a multiplicity of human activities and cultures. Participation in internal goals is perhaps necessary for the exercise of integrity as a property worthy of respect, but it is not sufficient. There must also be a wider frame of reference where both one’s own and other people’s particular interests have a place, something akin to the extended perspective of ethics indicated.

7.5 The Moral Substance Psychologically Grounded In response to Williams among others Cox, La Caze and Levine have drawn attention to the fact that people with integrity are certainly characterized by profound and strong convictions which they are prepared to stand up for and defend, but at the same time they “may be genuinely ambivalent about significant concerns and values” (ibid., 46). The property of integrity is intimately associated with a striving to take account of and to integrate other people’s interests with the interests of oneself or one’s group. They look upon this striving as a basically moral ambition, an incapacity to disregard conflicts and a readiness to reconsider one’s own opinions and values in the light of other people’s interests and views. In contrast to other philosophical presentations of integrity, Cox et al. consider that the property of integrity cannot be ascribed to anyone who merely satisfies the formal requirements “. . . It must be pointed out that it is virtually impossible. . .that individuals who act badly, consistently and grossly, such as a torturer or Eichman, can have integrity” (ibid., 57). Integrity presupposes the presence of a moral substance and for this reason it is not possible to distinguish personal from moral integrity. There are moral limits to what a person with moral integrity will defend. At bottom, there is an ambition to bridge conflicts and to seek a way of balancing the various values which cannot all be satisfied simultaneously. For Cox et al. it is precisely the property of taking account within reasonable limits of other people’s interests as part of one’s own life project. This is somewhat similar to the position adopted by Elizabeth Ashford (2000). It does not emerge from the discussion of Cox et al. what constitutes the moral substance which persuades a person with integrity to take account of the interests of others. The same is true of Ashford who gave utilitarianism a basic place in discussing the motives of a person with integrity. Kant allows scope for the individual’s own life project, but his interest is concentrated on how such projects can be co-ordinated within a total framework where the interests of others can be accommodated, and on the principles which could be thought to guide such a coordination. It is not part of his agenda to explain how the will to be moral arises. Ernst Tugendhat has suggested that a necessary prerequisite for it to be meaningful

7.5 The Moral Substance Psychologically Grounded

145

to become involved in a moral discussion with someone else is that the latter possesses a basic capacity to feel moral shame (Tugendhat 1991). The moral appeal expects the presence of an inner sanction in contrast to the function of judicial norms where the sanction is external. How this capacity to experience moral shame arises is unclear. One might begin by imagining an explanation which partly is based on the connection which exists between shame as an emotion and the emotion of embarrassment, and partly from the experience individuals acquire when eventually in different types of social activity they see and learn to esteem the internal goals of the activity. The emotional basis of the property of integrity is probably rather complicated and I have proposed that we should define it as a complex property consisting of several different behavioural modules. The emotion of embarrassment is directed at one’s personal exposure and reveals itself in an ambivalent attitude in the person involved, who wishes both to be a part of the social sphere and at the same time to retreat from it. With the help of various types of behaviour individuals try to protect themselves from or to master situations where the emotion is stimulated. This capacity for the experience of ambivalence would seem to be a necessary precondition for the recognition of conflicting interests and collisions of values. The emotion of shame, however, presupposed a more complex cognitive capacity and the possibility of reflection about how one as an individual fulfils certain social and moral rules and conventions. The capacity to experience shame is dependent on cultural factors and learning. One such kind of learning can be thought to arise as a consequence of the individual participating in various social activities and through this also experiencing the internal goals which characterize these activities. Through these activities, the goals also become constitutive for the individual’s own experienced identity. By cheating at chess, individuals deceive themselves. When researchers win glory and fame by manipulating their data, they feel moral shame, assuming that they have earlier incorporated the internal goals of science with their life project. For the researcher, curiosity is a driving force, and the possibility of an observation which falsifies one’s own or accepted hypotheses, is tempting in the search for knowledge. In a corresponding way, there are important driving forces in other professional activities. Politicians who fail to keep their promises, who lie to gain short-term political advantages, or who do not live in accordance with what they preach, are not respected for their integrity. The crucial characteristic of politicians with integrity is, however, linked to the basic way they act and respond. Do they take the different interests which are to be welded together in a political compromise seriously, or are they indifferent to the values which are lost through a political decision? Indifference, Cox et al. have suggested, is the ultimate test for politicians who wish to be respected for their integrity. “The final defeater of political integrity is what we shall call ‘indifference’. A politician who fails to take their professional role seriously – through an indifference born of laziness, of arrogance, or of misunderstanding – can have little claim to the virtue of political integrity” (Cox et al. 2003,113). We cannot expect that judges with integrity will always make the right decision, but we do expect that they will consider all relevant aspects of a case and that they will take and weigh up the arguments in their final judgement

146

7 Integrity as a Quality Worthy of Esteem and Respect

in a way which is reasonable with reference to the importance of the issue and the consequences which follow from their judgement. In a similar way, we expect that journalists with integrity will try to illuminate all the various aspects of the event they report on. Kant had no place for emotions in his moral philosophy in the sense that they could be considered to form a basis for different moral duties with a universal claim. He reckoned with the fact, however, that they could play an important role by increasing human sensitivity for the values at stake. Moral feeling was not sufficient to guide actions, but it seemed to be necessary as a preparation prior to making a more rational judgement about how conflicting interests were to be reconciled. This is evident inter alia from his discussion of human attitudes to animals. In the Kantian moral system humans have no direct obligations to take account of in their contacts with animals. To the extent that animals are recognized at all in moral considerations, it is because of indirect reasons, in other words by pointing out the values at stake for human beings. If a person, while meandering in the countryside, passes a farm and sees the farmer striking his horse, he should speak his mind. Not for the horse’s sake, but because if he does not say to the farmer, Kant argues, it may be that the next time he passes the farm, he will witness the farmer striking his wife and children. Moral feeling for a living being risks being degraded. “With regard to the animate but irrational part of creation, violent and cruel treatment of animals is far more intimately opposed to man’s duty to himself, since it dulls his sympathetic participation in their pain and so weakens and gradually destroys a natural disposition most useful to morality in one’s relations with other men” (Kant 1797/1971, § 17). The indiscriminate destruction of what is beautiful in nature conflicts with the duties human beings have to themselves, since it weakens or destroys their disposition to love these things. This feeling, Kant says, is not in itself moral but it is nonetheless of great importance: “it is still a disposition of sensibility that greatly promotes or at least prepares the way for morality” (ibid.). The moral task of reconciling various goals and life projects is one for reason. However, the emotions play a role in allowing people to be morally moved or indignant. Kant never completed a theory which in more detail showed how sense experiences of that which was worthy of estimation, admiration or abhorrence in a particular connection, could be harmonized with a system of moral duties which were universal in scope. In his third Kritik, the Critique of Judgement, he made the necessary distinction, but there only focussing on aesthetics and experiences of the beautiful and the sublime (Kant 1790/1974). Kant held that it was a question of two different types of mental operations which differed from one another in their starting points. For what he called the determinate judgement, working on the basis of the universally valid, one sought to place different interests and experiences in a system of necessary deductions. This is reason’s way of arriving at what morals require, and it corresponds to the way described as that of Kant and Hegel in Chapter 5. The reflective judgement starts from the other end, namely with what is given in sense perception, and seeks those principles which can incorporate and order these experiences within something which is universally valid (Hansson 1991, Marc-Wogau 1938). The reflective judgement has an interpretative role, instead of a legislative

7.5 The Moral Substance Psychologically Grounded

147

one (Makkreel 1994, 3). For ethics, this implies a form of imaginative ethics which allows one to see the particular interests which are at stake in a certain situation, and experience the ambivalence which drives the search for a principle which resolves the situation, or enables a person to live with the conflict (Hansson 2002). People with the property of integrity which is worthy of respect, are expected to have developed a particular sensitivity about what can be thought to be at stake for the individuals they meet in their social context, but they also strive to seek a way in which what they observe and feel can be fitted into something akin to a wise balance between different values and goals. Feelings were sometimes disruptive elements, but for Kant they also played a role in urging human beings to seek what is morally right. It would be an unforgivable anachronism to try to harmonize Kant’s moral philosophy with a theory of integrity which originates in the evolutionary development of an emotional territory. However, it would be just as wrong to assert, as is often done, that feelings cannot play a significant role in this connection. It is just as wrong to assert that Kant did not reckon with human beings’ specific wishes and needs. It seems quite certain that he did perceive the importance of different emotions. The emotion of fear constitutes an illuminating example. It is interesting in the light of this to note that when Kant wishes to defend his project of enlightenment, he would seem to have seen fear’s destructive force and appeals to human being’s courage as a necessary property. His introductory words to the tract An answer to the question: What is enlightenment? published in 1784, have become classical: “Enlightenment is man’s emergence from his self-incurred immaturity. Immaturity is the inability to use one’s own understanding without the guidance of another. This immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guidance of another. The motto of enlightenment is therefore: sapere aude! Have courage to use your own understanding!” (Kant 1784/1977, 54). The enlightenment was a contemporary project for liberation from ignorance and the dogmatic idleness which results in an incapacity to accept objections and to balance conflicting interests with one another. It implied liberation from fear of using one’s own understanding as well as one could. The courage to stand up for what one believed in, but also the courage to accept criticism. The connection with the theorizing about integrity as something worth of respect, is striking. People with integrity stand up for their values and life project, but they also persist in their striving to allow room for other people’s objections and experiences. They never really cease to be active. For people with integrity there is an inward pull towards their own view and their own social context, but simultaneously there is a striving which goes in the opposite direction, outwards, in a recognition of the interests of others. Kant described this dual motion by a distinction between what he called enlightened people’s “private” and “public” use of reason (ibid.). The private use implies that in holding a certain office and in a professional role, one has to adapt and be loyal to the rules and goals of the activity involved. The individual is always limited as regards their freedom of action and also in their freedom of speech within the framework of their office. He or she may dislike certain values or rules, but they must abide by them nevertheless. They have, however, a possibility, and according to Kant, a duty to also make public

148

7 Integrity as a Quality Worthy of Esteem and Respect

use of their reason. They have a possibility and a duty which they must not fear to discharge, if they consider a criticism of their own context or activity is justified. This frank use of critical reflection in the sphere of public office is particularly important for other people, since those who are on the outside often lack the same insight into the activity compared with a person who is centrally involved in it. Kant takes an example from the ecclesiastical sphere. “. . . A clergyman is bound to instruct his pupils and his congregation in accordance with the doctrines of the church he serves, for he was employed by it on that condition. But as a scholar, he is completely free as well as obliged to impart to the public all his carefully considered, well-intentioned thoughts on the mistaken aspects of those doctrines, and to offer suggestions for a better arrangement of religious and ecclesiastical affairs” (ibid., 56). In a corresponding way, one can imagine that judges are bound by various legal rules and court practice. They are expected to strictly apply the principle of legality, that is to say, they should always deliver their judgement in accordance with what the law says. But they are also obliged to inform the public as well as the political assembly which is responsible for reforming the legal system, of their criticism of the legislation and the application of the law. Researchers loyally follow the rules and social norms of scientific society, but they are also obliged to draw attention to the shortcomings in these rules and norms that they spot. Only through such an open and frank use of critical reflection, are there grounds for those who lack the same knowledge, to have confidence in the activity. This is not the whole solution to bridging the gap between researchers and the public which is due to lack of trust, but an important building stone would seem to be the researcher’s truthfulness, both inside the discipline and outside it. Inside the discipline, it is driven by the internal goals of science, and outside the discipline, for the same reason, one should not promise and say more than one can subscribe to. Researchers cannot say everything in the public sphere which they can and ought to discuss openly and without inhibition in the scientific seminar, but they can resist saying things in public which they could not also stand for, in an examination by their scientific peers. In addition, they have a duty to assist in a critical insight and scrutiny, particularly when other people’s interests, life and health are at stake. Those who do not feel a pang of unease about how science can in the future be used in different circumstances, would seem to have lost that striving to participate which is deeply rooted in human beings, and which is a recognizable sign of a researcher who serves science and society with integrity. One must leave room for the private life project, but recognize that these projects have both a psychological and social sphere. The line of demarcation between what is private and what is public has varied from age to age and from culture to culture. The interest in personally having insight into the way the line is drawn, as well as being able to influence it, would seem, however, to be the same. It answers to a psychological need which seems to be deeply rooted and partly common among different species. The assignment of moral and political authority is of crucial importance for the moral and political form given to society’s various arenas. Both within ethics and law, emphasis is laid on the actual process whereby various conflicts of interest are to be resolved. There must be a sensitivity for the changed circumstances brought

7.5 The Moral Substance Psychologically Grounded

149

about by the technological advances, but also a critical adjustment to changes in social conventions. The institutions which are created ought to focus on openness and transparency in the process, rather than categorically protect specific values and interests. Legitimacy in an institution’s activities or in the exercise of authority is based on the fact that the citizens have good reason to suppose that all relevant circumstances and arguments have been duly noted and weighed in the balance in the final decision in a way which is reasonable with respect to the importance of the issue and the consequences which follow from the decision. Those who exercise power in various authorities must follow the laws which have been decided by the parliament. In many cases, there are different ways of striking a balance between the different interests, which are incorporated in the rules. In some cases there are, however, shortcomings in legislation, which can have arisen because the legislator has taken too shallow a view of the activity which is to be regulated. In these cases those who have a responsibility for applying the law through their exercise of authority, have a special responsibility, since they often have comprehensive knowledge of the activity they are appointed to monitor. Through the exercise of authority, they gain special insight into how the laws work in practice. We expect of these people that they possess that property of integrity which is worthy of respect. They have not discharged their duty to the full, simply by protecting the principle of legality. They have a moral duty to publicly criticize the shortcomings and problems in the legislation. Citizens expect that they will stand up for their own personal convictions and, whenever it is necessary, openly present an account of conditions which entail that important interests, due to insufficiently well constructed legislation, have been set aside.

Chapter 8

Conclusions and Applications

8.1 Conclusions The various perspectives with regard to integrity, as something which demands special attention and respect, serve in different ways to underline the central thesis of the present work. A focus on non-interference does not do justice to the needs and values which are at stake for the individual whose integrity must be respected. Individuals strive for, and assign a value both to a protected arena of their own – the private sphere – and simultaneously to the possibility of participating in an exchange with other individuals. For psychological research, ethics and legal science, there are several theoretical approaches in this book, which can serve as starting points for theoretical development, for the formulation of new research problems and for critical responses. In this chapter, I shall briefly present what I myself consider to be the central conclusions of my work in the form of answers to three questions.

8.1.1 What Is Integrity? Integrity is first and foremost a property associated with all living individuals which is based on an interplay in the brain between three emotions, namely fear, embarrassment and pride. Through the interplay of these three emotions, an emotional territory is created which regulates and guides the individual in an interaction with the natural and social environment. Integrity has also an important role from an evolutionary viewpoint. By means of this territory individuals explore their social status, their vulnerability and their social strength. Through the interplay and balance which develops between the three emotions, mental prerequisites which are needed in order for the individual to act as a social self are fulfilled. In the interplay with other individuals the subject’s self-image is reinforced by adopting roles in terms of dominance and submission. The game constitutes probably one of the first teaching aids in moral education where individuals learn fair play, to take account of others and to establish themselves in a social order as a moral subject. The possibility of cognitively processing emotional reactions influences the way in which the territory is shaped and the function it acquires. As a result one can expect large variations between different individuals, not merely depending on the challenges they have M.G. Hansson, The Private Sphere,  C Springer 2008

151

152

8 Conclusions and Applications

had to deal with in their natural and social environments, but also upon cognitive abilities. For individuals who live in complex cultures, social conventions probably play a role and, in the case of human beings, various ideological and moral views, as well as material and economic circumstances, play a crucial role in the development of their sphere of integrity. The evolutionary memory, which all individuals carry with them, should not be underestimated, if we want to explain variations which occur in integrity. A territory always has a subject, in other words, someone who disposes over it. This individual personally seeks, in certain circumstances, to extend this territory or to defend it against attack. At the same time, the individual can also imagine giving it up in order to develop a relationship with other individuals, or to gain something else worth striving for. The territory provides a possibility for various types of relationship with other individuals. An individual with strong integrity is unwilling to allow anyone to enter his territory. In order to deal with the challenges in the socially complex world of human beings, great demands are placed on the capacity of individuals, both to protect their own perspective and also to protect their participation with others. Those who do not experience some form of ambivalence or doubt when their own views encounter questions and criticism, have built too strong a wall around their own domain. They risk being isolated and becoming social outcasts without homes or community. People with great integrity do not surrender their convictions and life projects in a casual, offhand manner, but are simultaneously susceptible to new arguments and insights, which they encounter through participation in a changeable society.

8.1.2 Why Ought One to Respect an Individual’s Integrity? In order to determine what it means to respect an individual’s integrity, one may start with two of its fundamental characteristics, namely the fact that emotional territory is a necessary prerequisite for the possibility of living a social life together with other individuals, and secondly, the fact that it is individuals themselves who dispose over their territories. Just as one assigns a special moral protective value to individuals who are able to experience pain, so the existence of an emotional territory furnishes sufficient reason why others should respect this territory. Because of its social importance, this territory should be protected and entry into it should not take place without good reason. Consequently when confronted with another individual’s territory, one should halt. Both integrity and the capacity to experience pain are basic characteristics of all sentient beings. Of these two, as far as human beings are concerned, the protection of integrity is assigned priority since it grants individuals the possibility and right of themselves determining how to confront pain. Individuals can choose to tolerate pain in order to acquire some other socially significant value, for example the experience of social strength in a group. Individuals personally dispose over their emotional territory. It is via this territory that the individual relates to, and communicates with the world around as an

8.1 Conclusions

153

autonomously acting subject. This capacity to act together with others is morally significant, and ought to enjoy the respect of all. In order to determine what respect for integrity, in this sense, entails in different contexts, it is reasonable to take into account the individual’s emotional and cognitive capacity. This is also done in the case of people when a growing emotional and cognitive authority demands greater respect from the world around. Children are therefore given the possibility of themselves deciding on issues, which affect their own happiness, as soon they are mature enough. Individuals with sufficient emotional and cognitive capacity are qualified to participate in drawing the line between one domain and another, and in balancing the various interests at stake. In human cultures, the task of striking a balance between the interests of different people in both enjoying seclusion for themselves and participating with others, is a moral and political task. To respect people’s integrity implies both affirming their right to a protected sphere of their own and at the same time, socially recognizing them as individuals with moral and political authority. The guiding idea in this task is the view of human beings as free individuals, that is to say individuals who have the right in community with others to have insight into, and to exert influence upon, the way the line is drawn between what, on the one hand, must remain private and what, on the other, constitutes legitimate entry into the private sphere in order to be able to protect other individuals’ interests and satisfy public interest.

8.1.3 How Should the Interest of Integrity be Weighed Against Other Interests? As citizens with moral and political authority individuals participate in a process of mutual recognition, which implies liberation from the rigid protection of their own existence and a transition to life in community with other individuals. Individuals surrender their privacy, in the restricted sense of a sphere of non-interference, and win respect for their integrity as a participating individual whose fate is interwoven with that of others. When society’s system of rules and institutions are being shaped, individuals must be able to see that attention is being paid to their own interests, but also appreciate why the latter are sometimes subordinated to other people’s interests or to the public interest. There must be insight into, and at the same time a possibility of influencing, how the balance between different interests is struck. They must be able to see which values have to give way to others. The legitimacy of the decision based on this balancing of interests, which is made by the citizens and the representatives of the general public, is based on the fact that all concerned parties are able to follow the chain of the argument in all its relevant detail. It should be possible for every citizen to assume, on good grounds, that all relevant circumstances and arguments have been taken into account, in a way, which is reasonable with regard to the importance of the balancing process and its consequences. Transparency, insight and accuracy with regard to the account rendered of practical circumstances and the interests which are at stake, are the most important prerequisites in order to create confidence in the various attempts to reach the balance which must be struck in

154

8 Conclusions and Applications

drawing a line between the needs for seclusion and participation in a society. When priorities have to be assigned to the different interests involved, it should be done in a way so that those who are worst off are favoured. This priority principle is already widely applied, e.g. in order to protect women and children regarding intrusion of privacy. In cases where medical interests are at stake, one ought correspondingly to seek a solution which favours those worst off. This means that the well-being and safety of current and future patients with regard to diagnosis, care and treatment are given priority to other interests.

8.2 Ethical Considerations Involved in Balancing Interests in Biobank Research One context where, for various reasons, questions of integrity have come to the fore, is the storage of human biological material for various medical purposes. I shall now briefly discuss what respect for integrity can mean in this context.

8.2.1 Biosamples Taken for Different Purposes The main reason for storing test samples is the donor’s own medical care and treatment. The largest biobanks contain samples which are stored in clinical pathology and cytology, and after microbiological serum analyses. It is a question of samples, which are taken routinely in order to determine the correct medical diagnosis. It can, for example, concern a patient who has a tumour in the breast. The patient has earlier been treated for cancer of the kidney. By analysing the new sample and comparing it with the earlier stored sample, one can determine if it is a question of a secondary tumour, or of a new tumour of another type. The ability to compare old with new samples is often necessary in order to make the correct diagnosis and suggest the right treatment. For children who are born with severe immune deficiency syndrome, a bone marrow transplant is sometimes the only solution. The Swedish so-called Tobias Registry for bone marrow contains blood samples with information about 40,000 individuals who have signed up as potential bone marrow donors. Bone marrow donation can be a sick child’s only chance of having a functioning immune defence system. Sometimes the necessary analyses are carried out at special laboratories in other countries. New parents are asked regularly if the midwife can take a sample from the heel or from the back of the hand. With the help of this sample, which is stored in the so-called PKU-registry, one can see whether the child is suffering from the metabolic disorder phenylketonuria. If this is not treated, the child is likely to suffer from developmental and neurological disorders, symptoms which normally cannot be detected in the newborn child. With the help of a special diet, the child can develop normally. Several other maladies can be identified with the help of these samples. Within health and hospital care, stored samples are used for quality development, education and research. Through research, one can study and take preventive

8.2 Ethical Considerations Involved in Balancing Interests in Biobank Research

155

measures against illnesses. The biobanks are also important instruments when one wishes to carry out clinical tests of new medicines. All these goals for storing samples within health and hospital care are directly or indirectly motivated by safety requirements in the diagnosis, care and treatment of current and future patients, directly in the case of the diagnosis and treatment of patients, and indirectly by virtue of the fact that medical education, research and quality development are all ultimately pursued with the health of current and future patients in mind. Taken as a whole, biobanks constitute an important health resource in all countries. For certain medical research projects, one can make use of stored samples, but most often samples in the case of a particular patient group are included to throw light on a specific question. There are many different types of biobanks, which can be used to assist research projects in providing answers to specific medical questions. Cytological cell samples are taken in connection with repeated examinations of women in order to find out the risk of cervical cancer. These and other samples are taken from healthy persons but they have been shown to be highly useful in testing various scientific hypotheses about the origin and development of illnesses. Samples which have been stored in connection with the investigation of a suspected infection or in connection with the treatment of an illness also constitute basic material for scientific studies. New samples are also taken in the course of specific scientific studies. Often use is made both of the information which can be obtained from the sample itself, and of information which exists in various medical and demographic records. Various types of sample collections obviously constitute potentially important health resources. Asking a donor about the use of an earlier sample for a new purpose leads to a “drop-out” cost in terms of a less adequate scientific basis (Kaijser 2003). The Swedish Act on Biobanks focusses on the medical goals of storing human biological material in biobanks. It is probable that the two largest biobanks in the world are to be found at the U.S. Armed Forces Institute of Pathology, which is home to over 95 million samples, with the principal aim of being able to identify casualties of war or major accidents (Naser and Alpert 2000). Biological samples and DNA profiles have increasingly been used in police investigations of suspected crime (Giannelli 2000). It is also the practice, in various countries and to varying degrees, to take samples in investigating the risk profile on the part of a presumptive insurance policyholder and in connection with the health examinations of employees arranged by an employer. The further development of methods for DNA analysis has advanced rapidly and with current techniques, most biological traces and old decomposed material can also be analysed. The questions raised by the police in a crime investigation are often similar to the questions a historian asks in analysing historical or archaeological material. Can a biological trace be linked to a person or a particular place? Can one show a family connection between persons or folk groups? Can one demonstrate that the remnants come from a certain person? Can one pair off objects with persons? Can one demonstrate that a person suffered from a hereditary illness? Samples can also be used to determine biological parenthood. If an earlier sample is to be used for a new medical purpose, the accepted rule is usually to ask the sample donor once more. From the viewpoint of the sample

156

8 Conclusions and Applications

donors, one can ask, however, what role it plays, if an earlier sample which was taken in order to study cancer of the kidneys, is later shown to be useful also in studying breast cancer, or if a blood sample which was taken to study a metabolic deficiency syndrome, later can be used to acquire more knowledge about an immune deficiency syndrome. In all cases when it is a matter of medical research of these kinds, the samples taken are coded. They are also as a rule covered by the secrecy or confidentiality legislation (von Essen 2003). It would also appear to be difficult – and not only for the sample donor – to distinguish between what is research and what is quality development. From an integrity point of view it would seem to be more sensitive if a sample taken for a medical purpose is later used for strictly nonmedical purposes e.g. in insurance company investigations, in police investigations or in paternity cases. One reason for the attention paid to biobanks would seem to have to do with the possibility of obtaining and analysing genetic information with the help of the samples. The question, however, is in what sense this information is unique and calls for special attention on the part of legislators and authorities. It is time to examine this issue.

8.2.2 Genetics as Hyperbole It is undeniably the case that researchers are occasionally prone in public debate to exaggerate the importance of genetic research. Those who are appointed to monitor the development would also, however, appear to be guilty of exaggeration, where factual evidence is lacking. George Annas and Sherman Elias hold that the personal character of the information which is contained in an individual’s DNA can best be illustrated by looking upon this DNA as a “future diary” (Annas and Elias 1992). A diary is perhaps one of the most private and personal documents which an individual can create. Genetic information, according to Annas and Elias, describes an individual’s future personal life as a unique individual. This is, however, an exaggeration, for very good biological reasons. The fact that human beings are products, both of their genes and their environment, make it necessary to be careful about drawing conclusions about future events on the basis of genetic disposition. Genetics is not deterministic. Moreover, a dominant gene can have an effect in different ways and the penetrance for different genes varies in a way which is still not understood. Caleb E. Finch and Thomas B.L. Kirkwood have, in addition, shown that chance plays a much more important role in explaining individual variations than one has hitherto realized (Finch and Kirkwood 2000). They studied the nematode Caenorhabditis elegans. In a population of genetically identical nematodes, which were produced and kept in controlled laboratory conditions, one observed large variations with respect to length of life. Some individuals died after 10 days while others lived for 30 days or more. The causes of this variation in ageing and death among Caenorhabditis elegans were unknown, and Finch and Kirkwood began to seek explanations in terms of different random phenomena during the individual’s development and adult life. Finch and Kirkwood provide different arguments for the random nature of the variations during the organism’s development. It can be

8.2 Ethical Considerations Involved in Balancing Interests in Biobank Research

157

a matter of variations in the number of cells in different types of tissue, but also in internal contacts between the cells e.g. variations in synaptic density in nerve tissue. There are also signs of functional variations which have to do with an organ’s capacity or sensitivity in part of the nervous system in reacting to the effect of different hormones. Chance would also seem to play an important role in the immune system’s capacity to adapt to new antigens and the organism’s capacity to replace damaged molecules and cells. It is important to note that it is not primarily a matter of purely random phenomena, where it is basically impossible to predict the result. Finch and Kirkwood describe the random variations as a result of stochastic processes. These are processes, which, in spite of their random nature, give a distribution of results which it is possible to describe with the help of a mathematical model. The possibility of using such mathematical models to calculate and predict the result of chance in biological processes is, however, still very limited. There is probably an evolutionary explanation for the importance of biological randomness. Random events take place throughout the whole process of development from fertilized egg to adult individual. However, chance does act on its own, but always in interaction with genes and environment. The evolutionary development is focussed on reproduction, and it is probable that for changes which occur early in development, during the reproductive-intensive phase, there is a stronger selective pressure to genetically control random events in various ways. The organism’s capacity to repair its own mistakes, in reading off genes and processing information, as well as its capacity to protect itself against external influence, is greater during that part of development when there are advantages to be won concerning the possibility of reproducing itself. For the ageing individual there are no evolutionary reasons to develop the genetic control programs. A gene which give rise to effects which occur late in development e.g. certain forms of cancer, old age diabetes, and Alzheimer, are not going to have to face some kind of selection mechanism. Reproduction has already taken place. Consequently chance, like environment, can then be thought to have greater effect when it is a matter of the illnesses associated with ageing. Both the effect of environment and chance on individual development emphasizes the fallacy in regarding the individual’s DNA as a “future diary”. Thomas H. Murray has questioned the view that genetic information is something exceptional in comparison with other medical information (Murray 1997). He draws attention inter alia to four aspects of genetic information which are often employed to emphasize its unique character. (i) Genetic information has a particularly strong predictive function because it yields specific probabilities. (ii) Genetic information about an individual affects, by definition, other genetically related individuals. (iii) The genetic information can be used to discriminate against individuals e.g. in connection with insurance. (iv) It is information which can be highly sensitive from a personal point of view. However, as far as predictive possibilities are concerned, there are – as has been stated – biological reasons for adopting a modest attitude. Other medical information can be equally hidden, but still be strongly predictive. “Other types of information would be hidden, just like most genetic information; examples include asymptomatic hepatitis B infection, early HIV infection, and even one’s cholesterol level. These have implications for future health that are every bit

158

8 Conclusions and Applications

as cogent and sensitive predispositions” (ibid., 64). Nor is the fact that medical information affects other related individuals a new phenomenon. As pointed out in an earlier chapter, heart failure or an incipient cancer in a patient, who is also the breadwinner in the family, are things which are of vital interest to other family members. A person’s life style can also affect others in the family. This is also true of sexually transmitted diseases, but in this case individuals outside the family circle are also affected. Nor is genetic information unique, when it comes to the possibility of discriminating between different individuals. Long before there were genetic tests, insurance companies used health information and medical examinations as the basis for calculating the potential policyholder’s risk profile. Life style factors, such as smoking and the use of alcohol, are judged increasingly as relevant in distinguishing individuals in connection with medical treatment. An inveterate smoker, who has had lung cancer but continues to smoke, can find it very difficult to fulfil the medical requirements associated with lung transplantation. Other medical information, for example on sexually transmitted diseases, sexual identity and some mental illnesses, can just as well be regarded as highly sensitive.. Murray warns against exaggerating the importance of genetic information. It can lead to the importance of “genetic solutions” of complex problems, being greatly exaggerated, something which is not in the interests of those involved. “. . . there is a vicious circularity in insisting that genetic information is different and must be given special treatment. The more we repeat that genetic information is fundamentally unlike other kinds of information, the more support we implicitly provide for genetic determinism, for the notion that genetics exerts special power over our lives” (ibid., 71).

8.2.3 To Be Left in Peace but at the Same Time to Participate As noted, there are reasons for de-emphasizing the one-sided focus on biobanks, which have been established for medical purposes. There is also reason not to exaggerate the importance of genetic information. Nevertheless, the question remains of how the integrity aspects have to be balanced also in this context and for this type of information. The theory of integrity which I have proposed rests on a fundamental insight that individuals have a dual interest in being left in peace and at the same time being able to participate. The dominant idea of non-interference is untenable. Samples which are taken routinely and stored within the health and hospital care sector, are necessary to guarantee, as far as possible, the patient’s best interests with respect to diagnosis, care and treatment. By giving a sample the patient participates in creating better conditions for his or her own care and treatment. There must be few people who would object to this. Nor would the majority wish to specify the purposes too narrowly. We do not know when we are going to be afflicted by a certain illness, and the existence of large, well defined and high quality biobanks to which many have contributed, can be of use to us when we least imagine (Hansson 2007). On the other hand, it is conceivable that individuals, who have given samples

8.2 Ethical Considerations Involved in Balancing Interests in Biobank Research

159

for medical purposes, would have objections, for example, to insurance companies or the police using these samples for quite different purposes. It is neither reasonable nor desirable to specify too precisely the medical purposes of storing human biological material (Hansson et al. 2006). A model where one simply says that it is for “the patient’s own care and treatment and related matters” or in the case of special research projects one gives the purpose simply as “medical research”, would probably be more in keeping with people’s interest in both seclusion and participation. This is borne out by two recently conducted surveys, one carried out for a particular region of Sweden, and the other which was based on a representative sample of the Swedish population (Kettis-Lindblad et. al. 2004, Stegmayr and Asplund 2002). Overall, the results point among other things to a willingness to accept broad goals and a high degree of trust in genetic research which is conducted with the aim of acquiring better knowledge of the development and treatment of illnesses. There was also strong support for the work of the research ethics committees. By contrast, there was less confidence in legislators and the public authorities. Obtaining informed consent is in itself uncontroversial when a medical research study begins. When it is the case of research studies which make use of material collected earlier there is, however, reason to be restrictive about allowing information and consent arrangements which entail that one must go back to the sample donor and request permission to use the sample for a new medical purpose (Helgesson et al. 2007). The samples in a biobank, which have been collected for a specific purpose can sometimes be useful in testing new scientific hypotheses. For the researcher it can be difficult to predict scientific development, and it is therefore impossible to give precise information about possible goals when the first sample is taken. If one applies the consent norm strictly, and chooses to ask the donor about the new research aim, the donor can, on the one hand, feel both respected and a participant in the decision-making. If one is aware of the costs for such an information and consent arrangement, the result can just as well – perhaps are more likely to be – the opposite. To ask for renewed consent would undermine the donor’s possibilities of participating in the development of scientific knowledge. The donor is more likely to experience a lack of respect in being asked yet again. The reason for this is that if one chooses to ask again, one will never achieve, for various practical reasons, a 100% reply response, even in cases where people were interested in participating. At most, one can reckon on a reply frequency in the range 70%–80% and in many cases much lower. Nor has one much control over the response deficit. It can turn out that it is the most interesting people, from the viewpoint of the study, who have not replied. The cost of asking again is therefore a significantly poorer scientific basis for the results one hopes to achieve. These results can be of crucial importance for the possibility of developing medical diagnoses, care and treatment. To apply the consent norm strictly would imply denying the moral authority of the sample donor who wishes to have insight into, and influence over, how the balance is struck between what is private and what is public, between our own interests and other people’s, and between current interests and future interests. Respect for the integrity of the sample donor ought to include the possibility

160

8 Conclusions and Applications

of handing over scrutiny to a research ethics committee, which is democratically constituted and is able to see how the work is pursued and how decisions are made (Hansson 2005). The individual’s interest in not being exposed to an invasion of his personal matters is still satisfied, since personal information which can be linked both to the biological material and to the information which can be obtained from it, is secret (von Essen 2003).

8.2.4 To Participate in the Development of Medical Knowledge Individuals, as far as their own personal matters are concerned, have an interest in being left in peace but they also wish to participate in the possibilities which are available to citizens in a society. This includes the possibility of being able to have access to new medical knowledge. The donor has interests both at the beginning of a process intended to expand knowledge, when a sample is taken and stored, and at the conclusion of the process when the new knowledge acquired is put to use in diagnosis, preventive measures, or treatment. Participation, however, means more than just personally enjoying these fruits of knowledge. According to the arguments presented earlier, the individual’s private sphere is never wholly divorced from other people, and freedom includes respect for the needs of others. Without their co-operation, our own goals cannot be achieved. For that reason one ought in this context to note that the scientific value of biobanks increases, the more complete they are, and the more relevant information they contain. The Swedish Biobanks Act gives individuals the right to withdraw their consent, and to have a sample destroyed or made unidentifiable. Such a stipulation follows logically from the assumption of non-interference as a basic motive for protecting privacy and a strict interpretation of the consent norm as a principle for balancing interests. However, it fails to take sufficient account of the desires of individuals to participate, which are based, to use Hegelian terminology, on the sublation of themselves and their own private goals, in order to create with others a system where everyone’s different, particular interests can find a place. An alternative regulative framework for biobanks would have been to apply the same procedure applied in the case of many other medical registries. Because of their public interest importance these registries have been established on a legislative basis by the National Board of Health and Welfare, and they do not admit any right on the part of individuals to have their information removed. One example of such a registry is the Cancer Registry. Individual integrity in the sense of protection of the personal sphere is assured by rigorous confidentiality requirements. Individual integrity in terms of respect for a person’s moral and political authority is satisfied by a democratic and transparent process for the establishment and administration of these registries. One might object to this argument and maintain that the very possibility of withdrawing one’s consent and having the sample destroyed or made unidentifiable implies a respect for the donor as a citizen with moral authority. It is also conceivable that the individual has strong personal reasons for not wishing to participate in a certain type of medical research. These interests should be respected as far as possible, but legislators and the authorities concerned must also apply a balancing principle

8.2 Ethical Considerations Involved in Balancing Interests in Biobank Research

161

which weighs one interest against others and where ultimately it is the worst off in society who should be favoured in the outcome. In this particular case, the interests of currently and future patients in having access to new medical treatment have also to be taken into account. It can be an interest of which a person who is ill or someone with a relative who died from cancer can be acutely aware. If, therefore, it is the case that allowing people to withdraw their consent has particularly negative effect upon those who are already worst off in society, there is reason to abstain from this possibility. The interest of the sick in being cured should be given higher priority than a healthy donor’s opportunity to have his attitude to a certain type of medical research respected. Protection of the sample donor’s privacy is still respected in the sense that the information is, and remains, strictly confidential. The legislator is also responsible for balancing the respective interests of those involved. It is reasonable, as far as possible, to rely on the individual’s own will and capacity to communicate genetic information he or she has received through a genetic test to other relatives involved. In the majority of cases this also works well in practice, since family relations are normally such that family members take account of, and look after one another. Within the family there is also knowledge about special factors and conditions, which an outsider knows nothing about. It is not, however, inconceivable that the moral ties which unite the members of the family can for various reasons become weaker. There is a development in society which in the long run, due to new family formations, can lead the genetic family and social family drift apart. There are also, alas, situations where the moral ties no longer function, and family members, for various reasons, are made to suffer. Legislators ought therefore to consider if, when an individual fails to deliver voluntarily and in a responsible way information affecting other members of the family, they should directly give the information which is needed. Such a regulation would then violate the integrity of individuals who do not wish to have any information, but there is no way of finding out who these individuals are. A reasonable solution, which starts with the insight that human lives are intertwined, both socially and morally, would be to introduce for health and hospital personnel an extended obligation to provide information to those who are affected by the information. Such an extended information obligation would be subject to the following requirements: (i) the information is reliable according to science and tested experience, (ii) the information is associated with a reasonably certain risk of illness, (iii) the illness is of a relatively serious kind, (iv) the genetic component has high penetrance, (v) there is effective prevention or treatment, and (vi) provision is made for personal support with regular check-ups. Such a social arrangement has assuredly a moral cost and the obligation should not be discharged in a nonchalant or unprofessional way. The same situation applies to entering a person’s private sphere with the aim of protecting children or women against violence and sexual abuse.

8.2.5 The Integrity of the Researcher and Persons in Authority From an integrity standpoint there are very good reasons for ensuring openness and transparency with respect to the principles and reasons, which serve as guidelines

162

8 Conclusions and Applications

in reaching various decisions. It should be possible to see how the balance is struck between different interests and what values have to be sacrificed to others. Whoever wishes to should be able to see that all relevant facts and arguments have been duly noted and weighed in the final decision in a way which is reasonable with respect to the question’s importance and the consequences of the decision. To hold on to a principle, for example, the requirement that a strict form of the consent norm must always be applied, no matter the cost, is a sign of strong principles, but not of great integrity. A crucial point in the discussion on biobank research has concerned the commercial component in some of this work. It is not difficult to understand, and ought not to be too difficult to communicate, that some medical research at universities presupposes co-operation with commercial interests. It is impossible for a university research team, solely with the help of government faculty financial support, or other research funds, to take charge of the whole knowledge process from fundamental discovery to effective medicine. From the viewpoint of the patient in need, co-operation with commercial actors is both necessary and desirable. This co-operation, however, makes demands on the researcher’s integrity. The biobank forms an important health resource, but used wrongly, it can lay the basis for an agreement with industry, which fails to pay sufficient attention to the interests of patients. In this context, as in other research, there is always a risk that the individual researchers fail to focus on the basic task and set their own well being, or that of the team, before the interests of patients and the pursuit of knowledge. It is important that the researcher shows moral backbone and makes a resolute stand for the internal goals of science and the general overall interests of the patients. It may mean that one has to decide between the claim of a researcher or a company for exclusive access to certain material, and the general benefit which accrues to patients from sharing samples with other researchers. It cannot be determined in advance how this process of balancing interests will turn out, but a reasonable demand is that the process leading to the decision is an open one, so that we can see what interests have been taken into account and the basic terms of the agreement which has been drawn up.

References

Annas, George J., Elias, Sherman (Eds.), Gene Mapping: Using Law and Ethics as Guides, Oxford University Press, New York 1992. Archer, Margaret S., Being Human. The Problem of Agency, Cambridge University Press, Cambridge 2000. Ariès, Philippe, Introduction, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. III, Passions of the Renaissance/Roger Chartier, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1989, 1–11. Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. I–V, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1987–1991. Arneson, Richard J., Egalitarian justice versus the right to privacy? in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 91–119. Ashford, Elizabeth, Utilitarianism, integrity and partiality, The Journal of Philosophy, 2000, XCVII: 421–439. Beauchamp, Tom L., Childress, James F., Principles of Biomedical Ethics, 5th edition, Oxford University Press, New York 2001. Bekoff, Marc, Social play behaviour. Cooperation, fairness, trust and the evolution of morality, Journal of Consciousness Studies, 2001, 8(2): 81–90. Bekoff, Marc, Wild justice and fair play, cooperation, forgiveness and morality in animals, Biology and Philosophy, 2004, 19: 489–520. Benhabib, Seyla, Dallmayr, Fred (Eds.), The Communicative Ethics Controversy, The MIT Press, Cambridge, Massachusetts 1990. Boehm, Christopher, Impact of the human egalitarian syndrome on Darwinian selection mechanics, in: Wilson, D.S. (Ed.), Multilevel Selection, special issue, American Naturalist 1997; 150, supplement 100–121. Boesch, Christophe, Complex cooperation among Taï Chimpanzees, in de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 93–110. Boyd, Robert, Richerson, Peter J., Culture and the Evolutionary Process, University of Chicago Press, Chicago 1985. Bråkenhielm, C.R., Hansson, M.G., Livets Grundmönster och Mångfald. En bok om genetik, etik och livsåskådning, Liber Utbildning, Stockholm 1995. Braunstein, Philippe, Toward intimacy: The fourteenth and fifteenth centuries, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. II, Revelations of the Medieval World/Georges Duby, editor, The Belknap Press of Harvard University Press, Cambridge, Masschusetts 1988, 535–630. Brown, Peter, Late antiquity, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. I, From Pagan Rome to Byzantium/Paul Veyne, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1987, 235–311.

163

164

References

Calhoun, Cheshire, Standing for something, The Journal of Philosophy, 1995, XCII: 235–260. Caplan, Arthur L., Beastly conduct: Ethical issues in animal research, in: Bulger, Ruth Ellen, Heitman, Elizabeth, Reiser, Stanley Joel (Eds.), The Ethical Dimensions of the Biological Sciences, Cambridge University Press, New York 1993, 175–185. Chartier, Roger, The practical impact of writing, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. III, Passions of the Renaissance/Roger Chartier, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1989, 111–159. Collste, Göran, Personlig integritet, Bilaga 4, Integritet, offentlighet, informationsteknik, Betänkande av Datalagskommittén (SOU 1997:39), Stockholm 1997, 785–807. Contamine, Philippe, Peasant hearth to papal palace: The fourteenth and fifteenth centuries, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. II, Revelations of the Medieval World/Georges Duby, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1988, 425–505. Corbin, Alain, Backstage, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. IV, From the Fires of Revolution to the Great War/Michelle Perrot, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1990, 451–667. Cosmides, Leda, Tooby, John, Evolutionary psychology and the emotions, in: Lewis, Michael, Haviland-Jones, Jeanette, M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000, 91–115. Council of Europe, Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine: Convention on human rights and biomedicine, Strasbourg, 19 November 1996. Cox, Damain, La Caze, Marguerite, Levine, Micahel P., Integrity and the Fragile Self, Ashgate Publishing Limited, Hants, UK 2003. Creel, Scott, Sands, Jennifer L., Is social stress a consequence of subordination or a cost of dominance? in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 153–169. Croyle, Robert T. et al., Psychologic aspects of cancer genetic testing, Cancer, 1997, 80(S3): 569–575. D’Hondt, Jacques, Hegel in His Time, Broadview Press, Lewiston, New York 1988. Darwin, Charles, The Descent of Man and Selection in Relation to Sex, Murray, London 1871. Darwin, Charles, The Expression of the Emotions in Man and Animals, 3rd edition, Oxford University Press, Oxford 1872/1998. de Waal, Frans B.M., Social syntax: The if-structure of social problem solving, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 230–248. de Waal, Frans B.M., Chimpanzee Politics: Power and Sex Among Apes, The John Hopkins University Press, Baltimore 1982. de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 87–92. DeCew, Judith Wagner, The Priority Of Privacy For Medical Information, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 213–234. Drea, Christine M., Frank, Laurence G., The social complexity of spotted hyenas, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 121–148. Duby, Georges, Communal living, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. II, Revelations of the Medieval World/Georges Duby, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1988, 35–85. Duby, Georges, Solitude: Eleventh to thirteenth century, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. II, Revelations of the Medieval World/Georges Duby, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1988, 509–533.

References

165

Durham, William H., Coevolution: Genes, Culture and Human Diversity, Stanford University Press, Stanford 1992. Düsing, Edith, Genesis des Selbstbewusstseins durch Anerkennung und Liebe. Untersuchungen zu Hegels Theorie der konkreten Subjektivität, in: Eley, Lothar (Hrsg.), Hegels Theorie des subjektiven Geistes in der “Enzyklopädie der philosophischen Wissenschaften im Grundrisse”, Friedrich Frommann Verlag – Günther Holzboog, Stuttgart-Bad Cannstatt 1990, 244–279. Ekman, Paul, Cross cultural studies of facial expressions, in: Ekman, Paul (Ed.), Darwin and Facial Expression, Academic Press, New York 1973. Ekman, Paul, Afterword. Universality of emotional expression? A personal history of the dispute, in: Darwin Charles (Eds.), The Expression of the Emotions in Man and Animals, 3rd edition, Oxford University Press, Oxford 1998, 363–393. Elster, Jon, Ulysses and the Sirens, revised edition. Cambridge University Press, Cambridge 1984. Engelhardt, Jr., H. Tristram, Privacy and limited democracy: The moral centrality of persons, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 120–140. Etzioni, Amitai, The Limits of Privacy, Basic Books, New York 1999. Farge, Arlette, The honor and secrecy of families, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. III, Passions of the Renaissance/Roger Chartier, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1989, 571–607. Finch, Caleb E., Kirkwood, Thomas B.L., Chance, Development and Aging, Oxford University Press, New York 2000. Flykt, Anders, A Threat Imminence Approach to Human Fear Responding. Direction of Threat, Aversive Contexts, and Electrodermal Responses, Studia Psychologica Upsaliensia 18, Acta Universitatis Upsaliensis, Uppsala 1999. Frey, Richard G., Privacy, control, and talk of rights, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 45–67. Fried, Charles, Privacy a moral analysis, in: Schoeman, Ferdinand David (Ed.), Philosophical Dimensions of Privacy: An Anthology, Cambridge University Press, New York 1984, 203–222. Frijda, Nico H., The Emotions. Studies in Emotion & Social Interaction, Cambridge University Press, Cambridge 1986. Frängsmyr, Tore, Svensk idéhistoria. Bildning och vetenskap under tusen år, Del I, Bokförlaget Natur och Kultur, Stockholm 2000. Gerber, Scott D., Privacy and constitutional theory, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 165–185. Giannelli, Paul, Hoffman, Sharona, Wagner, Wendy, Genetic information, law, legal issues in law enforcement DNA databanks, in: Murray, Thomas H., Mehlman, Mawell, J. (Eds.), Encyclopedia of Ethical, Legal and Policy Issues in Biotechnology, Vol. 1, John Wiley & Sons, Inc., New York 2000, 413–426. Griffin, James, Well-Being. Its Meaning, Measurement and Moral Importance, Clarendon Press, Oxford 1986. Griffin, James, Value Judgement. Improving our Ethical Beliefs, Clarendon Press, Oxford 1996. Griffin, Sharon, A cognitive-developmental analysis of pride, shame, and embarrassment in middle childhood, in: Tangney, June Price, Fischer, Kurt W. (Eds.), Self-Conscious Emotions. The Psychology of Shame, Guilt, Embarrassment and Pride, The Guilford Press, New York 1995, 219–236. Grosfeld, F.J.M., et al., Psychological risks of genetically testing children for a hereditary cancer syndrome, Patient Education and Counseling, 1997, 32: 63–67. Grön, A., Praktisk viden og fortolkning, Studier i antik og middelalderlig filosofi og idehistorie, Köpenhamn 1980. Guerrand, Roger-Henri, Private spaces, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. IV, From the Fires of Revolution to the Great War/Michelle Perrot, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1990, 359–449.

166

References

Habermas, Jürgen, Knowledge & Human Interests, Polity Press, Oxford 1968/1987. Habermas, Jürgen, The Philosophical Discourse of Modernity, The MIT Press, Cambridge, Massachusetts 1985/1991. Hall, Catherine, The sweet delights of home, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. IV, From the Fires of Revolution to the Great War/Michelle Perrot, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1990, 47–93. Hansson, MatsG., For the safety and benefit of current and future patients, Pathobiology 2007;74:198–205. Hansson, Mats G., Human Dignity and Animal Well-being. A Kantian Contribution to Biomedical Ethics, Acta Universitatis Upsaliensis. Uppsala Studies in Social Ethics 12, Uppsala 1991. Hansson, Mats G., För djurens och människans skull. Etiska utgångspunkter för vårt umgänge med djuren. Kungliga Skogs och Lantbruksakademiens Tidskrift, 1996, 9: 9–27. Hansson, Mats G., Värderingars värde, in: Uddenberg, Nils (Ed.), Det givna och det föränderliga, En antologi om biologi, människobild och samhälle, Nya Doxa, Nora 2000, 89–115. Hansson, Mats G., Imaginative ethics – bringing ethical praxis into sharper relief, Medicine, Health Care and Philosophy, 2002, 5: 33–42. Hansson, Mats G., Building on relationships of trust in biobank research, Journal of Medical Ethics, 2005;31:415–418. Hansson, Mats G., Dillner, J., Bartram, C.R., Carlsson, J., Helgesson, G., Should donors be allowed to give broad consent to future biobank research?, The Lancet Oncology 2006, 7: 266–269. Haviland-Jones, Jeannette M., Kahlbaugh, Patricia, Emotion and identity, in: Lewis, Michael, Haviland-Jones, Jeanette, M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000, 293–305. Hegel, Georg Wilhelm Friedrich, The phenomenology of spirit, IV.A. The independence and dependence of self-consciousness: masterdom and slavery, § 178ff., in: Hegel’s Phenomenology of Spirit (Selections translated and annotated by Howard P. Kainz), The Pennsylvania State University Press, The Pennsylvania State University 1807/1994, 50ff. Hegel, Georg Wilhelm Friedrich, Elements of the Philosophy of Rights (Ed. Allen W. Wood), Cambridge Texts in the History of Political Thought, Cambridge University Press, 1821/1991. Helgesson, G., Dillner, J., Carlson, J., Bartram, C.R., Hansson, M.G., Ethical framework for previously collected biobank samples, Nature Biotechnology 2007;25:973–976. Hermerén, Göran, Kunskapen pris. Forskningsetiska problem och principer i humaniora och samhällsvetenskap, Humanistisk-samhällsvetenskapliga forskningsrådet, Stockholm 1986. Hollis, Martin, Of masks and men, in: Carrithers, Michael, Collins, Steven, Lukes, Steven (Eds.), The Category of the Person. Anthropology, Philosophy, History, Cambridge University Press, Cambridge 1985, 217–233. Honneth, Axel, Erkännande. Praktisk-filosofiska Studier, Daidalos, Göteborg 2000/2003. Honneth, Axel, Grounding recognition: A rejoinder to critical questions, Inquiry, 2002, 45: 499–520. Honneth, Axel, The Struggle for Recognition. The Moral Grammar of Social Conflicts, Polity Press, Cambridge 1992/1996. Hopwood, Penelope, Psychological issues in cancer genetics: Current research and future priorities, Patient Education and Counseling, 1997, 32: 19–31. Hume, David, A Treatise of Human Nature (Ed. David Fate Norton, Mary J. Norton), Oxford University Press, New York 1740/2002, Book 2, Part 1, 181ff. ICMJE, www.ICMJE.org, Nov. 2003. Isenberg, Arnold, Natural pride and natural shame, in: Rorty, Amélie Oksenberg (Ed.), Explaining Emotions, University of California Press, Berkeley and Los Angeles 1980, 355–383. Jeffner, Anders, Livsåskådningar i Sverige. Inledande projektbeskrivningar och översiktlig resultatredovisning, [Stencil], Uppsala 1988. Jeffner, Anders, Djur och människor. Argumentbilder och strukturer I allmänt spridda värderingssystem, [Stencil], Uppsala 1992.

References

167

Kaijser, Magnus, Examples from Swedish biobank research, in: Hansson, Mats G., Levin, Marianne (Eds.), Biobanks as Resources of Health, Uppsala University, Uppsala 2003, 33–50. Kant, Immanuel, Grundlegung zur Metaphysik der Sitten (Herausgegeben von Karl Vorländer), Verlag von Felix Meiner in Hamburg, 3. Auflage, 1785/1965. Kant, Immauel, Kritik der Urteilskraft, (Herausgegeben von Karl Vorländer), Verlag von Felix Meiner in Hamburg, 1790/1974. Kant, Immanuel, The Doctrine of Virtue. Part II of The Metaphysics of Morals, University of Pennsylvania Press, Philadelphia 1797/1971. Kant, Immanuel, An answer to the question: What is enlightenment?, in Reiss, Hans, Kant’s Political Writings, Cambridge University Press, Cambridge 1977, pp. 54–60. First published: Beantwortung der Frage: Was ist Aufklärung? Berlinische Monatsschrift, Dec. 1784. Kant, Immanuel, Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis, 4. Auflage, Vittorio Klostermann, Frankfurt am Main 1793/1982. Kennerberg, Owe, Innanför eller utanför: en studie av församlingstukten i nio svenska frikyrkoförsamlingar, Libris, Örebro 1996. ˙ Lag, om biobanker i hälso- och sjukvarden (the Biobanks Act), 2002:297. Lag, om etikprövning av forskning (the Ethical Review of Research Act), 2003:460. Laurie, Graeme, Genetic Privacy. A Challenge to Medico-Legal Norms, Cambridge University Press, Cambridge 2002. Lazarus, Richard S., Emotion & Adaption, Oxford University Press, New York 1991. Lebrun, François, The two reformations: Communal devotion and personal piety, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. III, Passions of the Renaissance/Roger Chartier, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1989, 69–109. LeDoux, Joseph E., The Emotional Brain, Phoenix, Orion Books Ltd, London 1999. LeDoux, Joseph E., Phelps, Elizabeth A., Emotional networks in the brain, in: Lewis, Michael, Haviland-Jones, Jeanette, M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000, 157–172. Levinas, Emmanuel, Outside the Subject, Stanford University Press, Stanford 1975/1994. Lewis, Michael, Embarrassment: The emotion of self-exposure and evaluation, in: Tangney, June Price, Fischer, Kurt W. (Eds.), Self-Conscious Emotions. The Psychology of Shame, Guilt, Embarrassment and Pride, The Guilford Press, New York 1995, 198–218. Lewis, Michael, Haviland-Jones, Jeanette M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000. Lewis, Michael, The emergence of human emotions, in: Lewis, Michael, Haviland-Jones, Jeanette, M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000a, 265–280. Lewis, Michael, Self-conscious emotions: Embarrassment, pride, shame and guilt, in: Lewis, Michael, Haviland-Jones, Jeanette, M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000b, 623–636. MacIntyre, Alasdair, After Virtue. A Study in Moral Theory, Duckworth, London 1985. Makkreel, Rudolf A., Imagination and Interpretation in Kant. The Hermeneutical Import of the Critique of Judgment, Paperback edition, Chicago University Press, Chicago 1994. Marc-Wogau, Konrad, Vier Studien zu Kants Kritik der Urteilskraft, Uppsala Universitets Årsskrift 1938:2, Uppsala 1938. Marteau, Theresa, Richards, Martin, (Eds.), The Troubled Helix. Social and Psychological Implications of the New Human Genetics, Cambridge University Press, Cambridge 1996. McFall, Lynne, Integrity, Ethics, 1987, 98: 5–20. Meyerson, Bengt, Om djur i bur, natur och kultur – några funderingar kring refinement, in: Transgena djur ur djurskyddssynpunkt, Sammanställning från CFN-seminarium den 2 december 2002, CFN: skriftserie 2003, Norstedts Tryckeri, Stockholm 2003, 40–51. Miller, Rowland S., Embarrassment and social behavior, in: Tangney, June Price, Fischer, Kurt W. (Eds.), Self-Conscious Emotions. The Psychology of Shame, Guilt, Embarrassment and Pride, The Guilford Press, New York 1995, 322–339.

168

References

Mineka, Susan, et al., Observational conditioning of snake fear in rhesus monkeys, Journal of Abnormal Psychology, 1984, 93: 355–372. Montaigne, Michel de, Essays, Book 3:III, E-text at www.uoregon.edu/∼rbear/montaigne/ Murphy, Robert F., Social distance and the veil, in: Schoeman, Ferdinand David (Ed.), Philosophical Dimensions of Privacy: An Anthology, Cambridge University Press, New York 1984, 34–55. Murray, Thomas H., Genetic exceptionalism and “future diaries”: Is genetic information different from other medical information? in: Rothstein, Mark A. (Ed.), Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, Yale University Press, New Haven 1997, pp. 60–73. Naess, Arne, Økologi, Samfunn og Livsstil, Universitetsforlaget, Oslo 1974. Nagel, Thomas, Concealment and exposure, Philosophy and Public Affairs, 1998, 27: 3–30. Naser, Curtis, Alpert, Sheri, Genetic information, ethics, ethical issues in tissue banking and human subject research in stored tissues, in: Murray, Thomas H., Mehlman, Mawell, J. (Eds.), Encyclopedia of Ethical, Legal and Policy Issues in Biotechnology, Vol. 1, John Wiley & Sons Inc., New York 2000, 363–389. Neill, Elizabeth, Rites of Privacy and the Privacy Trade. On the Limits of Protection for the Self, McGill-Queen’s University Press, Montreal and Kingston 2001. Öhman, Arne, Face the beast and fear the face: Animal and social fears as prototypes for evolutionary analyses of emotion, Psychophysiology, 1986, 23(2): 123–145. Öhman, Arne, Fear and anxiety: Evolutionary, cognitive, and clinical perspectives, in: Lewis, Michael, Haviland-Jones Jeanette M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000, 573–593. Öhman, Arne, Mineka, Susan, Fears, phobias, and preparedness: Toward an evolved module of fear and fear learning, Psychological Review, 2001, 108(3): 483–522. O’Neill, Onora, Constructions of Reason. Explorations of Kant’s Practical Philosophy, Cambridge University Press, Cambridge 1989. O’Neill, Onora, Autonomy and Trust in Bioethics, Cambridge University Press, Cambridge 2002. Panksepp, Jaak, Emotions as natural kinds within the Mammalian Brain, in: Lewis, Michael, Haviland-Jones, Jeanette M. (Eds.), Handbook of Emotions, 2nd edition, The Guilford Press, New York 2000, 137–156. Parfit, Derek, Reasons and Persons, Clarendon Press, Oxford 1984/1992. Parr, Lisa A., Emotional recognition by chimpanzees, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 288–292. Payne, Katy, Sources of social complexity in the three elephant species, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 57–85. Perrot, Michelle, At home, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. IV, From the Fires of Revolution to the Great War/Michelle Perrot, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1990, 341–357. Perrot, Michelle, Roles and characters, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. IV, From the Fires of Revolution to the Great War/Michelle Perrot, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1990, 167–259. Perry, Susan, Case study 4A. Coalitionary aggression in white-faced capuchins, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 111–114. Prost, Antione, Public and private spheres in France, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. V, Riddles of Identity in Modern Times/Antoine Prost and Gérard Vincent, editors, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1991, 1–143. Rachels, James, Why privacy is important, in: Schoeman, Ferdinand David (Ed.), Philosophical Dimensions of Privacy: An Anthology, Cambridge University Press, New York 1984, 290–299.

References

169

Rawls, John, A Theory of Justice, Oxford University Press, Oxford 1972/1985. Rawls, John, Political Liberalism, Columbia University Press, New York 1993. Régnier-Bohler, Danielle, Imagining the self, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. II, Revelations of the Medieval World/Georges Duby, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1988, 311–393. Reiman, Jeffrey H., Privacy, intimacy, and personhood, in: Schoeman, Ferdinand David (Ed.), Philosophical Dimensions of Privacy: An Anthology, Cambridge University Press, New York 1984, 300–316. Ricoeur, Paul, Oneself as Another, Chicago University Press, Chicago 1992. Roncière, Charles de la, Tuscan notables on the eve of renaissance, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. II, Revelations of the Medieval World/Georges Duby, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1988, 157–309. Rorty, Richard, Contingency, Irony, and Solidarity, Cambridge University Press, New York 1989. Rosenberg, Alexander, Privacy as a matter of taste and right, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 68–90. Rouche, Michel, The early middle ages in the west, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. I, From Pagan Rome to Byzantium/Paul Veyne, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1987, 411–549. Rutgers, B., Heeger, R., Inherent worth and respect for animal integrity, in: Dol, M., van Vlissingen, M.F., Kasanmoentalib, S., Visser, T., Zwart, H. (Eds.), Recognizing the Intrinsic Value of Animals, Van Gorcum, Assen 1999, 41–51. Rynning, Elisabeth, Samtycke till medicinsk vård och behandling. En rättsvetenskaplig studie, Justus Förlag, Uppsala 1994. Scanlon, Thomas, Thomson on privacy, Philosophy and Public Affairs, 1975, 4: 315–322. Segerdahl, Pär, Fields, William, Savage-Rumbaugh, Sue, Kanzi’s Primal Language: The Cultural Initiation of Primates into Language. Palgrave Macmillan, Houndmills, Basingstoke and New York 2005. Siep, Ludwig, Intersubjektivität, Recht und Staat in Hegels ‘Grundlinien der Philosophie des Rechts’, in: Henrich, Dieter, Horstmann, Rolf-Peter (Hrsg.), Hegels Philosophie des Rechts. Die Theorie der Rechtsformen und ihre Logik, Klett-Cotta, Stuttgart 1982, 255–276. Siep, Ludwig, The Aufhebung of morality in ethical life, in: Stepelevich, Lawrence S., Lamb, David (Eds.), Hegel’s Philosophy of Action, Humanities Press. Atlantic Highlands and New Jersey 1983, 137–155. Siep, Ludwig, Praktische Philosophie im Deutschen Idealismus, Suhrkamp Verlag, Frankfurt 1992. Simmel, Georg, The sociology of secrecy and of secret societies, The American Journal of Sociology, 1906, XI: 441–498. Sober, Elliot, From a biological point of view. Essays in evolutionary philosophy, Cambridge Studies in Philosophy and Biology, Cambridge University Press, New York 1994. Sober, Elliot, Wilson, David Sloan, Unto Others. The Evolution and Psychology of Unselfish Behavior, Harvard University Press, Cambridge, Massachusetts 1998. SOU: 1996:70, Samverkan mellan högskolan och näringslivet, Betänkande av NYFORKommittén, Stockholm 1996. Stegmayr, Birgitta, Asplund, Kjell, Informed consent for genetic research on blood stored for more than a decade: a population based study, British Medical Journal, 2002, 325: 634–635. Sterelny, Kim, The Evolution of Agency and Other Essays, Cambridge Studies in Philosophy and Biology, Cambridge University Press, Cambridge 2001. Stipek, Deborah, The development of pride and shame in toddlers, in Tangney, June Price, Fischer, Kurt W. (Eds.), Self-Conscious Emotions. The Psychology of Shame, Guilt, Embarrassment and Pride, The Guilford Press, New York 1995, 237–252. Strum, Philippa, Privacy. The Debate in the United States Since 1945. Harcourt Brace College Publishers, Orlando 1998.

170

References

Strömholm, Stig, Right of Privacy and Rights of the Personality. A Comparative Survey, Acta, Instituti Upsaliensis Iurisprudentiae Comparativae VIII, P.A. Norstedt & Söners Förlag, Stockholm 1967. Tangney, June Price, Fischer, Kurt W. (Eds.), Self-Conscious Emotions. The Psychology of Shame, Guilt, Embarrassment and Pride, The Guilford Press, New York 1995. Tangney, June Price, Fischer, Kurt W., Self-conscious emotions and the affect revolution: framework and overview, in: Tangney, June Price, Fischer, Kurt W. (Eds.), Self-Conscious Emotions. The Psychology of Shame, Guilt, Embarrassment and Pride, The Guilford Press, New York 1995, 3–22. Taylor, Charles, Hegel, Symposium, Lund 1975/1986. Taylor, Gabriele, Pride, in: Rorty, Amélie Oksenberg (Ed.), Explaining Emotions, University of California Press, Berkeley and Los Angeles 1980, 385–402. Taylor, Gabriele, Pride, Shame and Guilt: Emotions of Self-Assessment, Oxford University Press, Oxford 1985. Thébert, Yvon, Private Life and Domestic Architecture in Roman Africa, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. I, From Pagan Rome to Byzantium/Paul Veyne, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1987, 313–409. Theunissen, Michael, Die verdrängte Intersubjektivität in Hegels Philosophie des Rechts, in: Henrich, Dieter, Horstmann, Rolf-Peter (Hrsg.), Hegels Philosophie des Rechts. Die Theorie der Rechtsformen und ihre Logik, Klett-Cotta, Stuttgart 1982, 317–381. Thomson, Judith Jarvis, The right to privacy, Philosophy and Public Affairs, 1975, 4: 295–314. Tugendhat, Ernst, Föreläsning vid Jahrestagung med Societas Ethica i Århus 1991. Tushnet, Mark, Legal conventionalism in the U.S. constitutional law of privacy, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 141–164. Tyack, Peter L., Dolphins communicate about individual-specific social relationships, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 342–361. Van Hooff, Jan A.R.A.M., Preuschoft, Signe, Laughter and smiling: The intertwining of nature and culture, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 260–287. Van Schaik, Carel P., Deaner, Robert O., Life history and cognitive evolution in primates, in: de Waal, Frans B.M., Tyack, Peter L. (Eds.), Animal Social Complexity. Intelligence, Culture, and Individualized Societies, Harvard University Press, Cambridge, Massachusetts 2003, 5–25. Veyne, Paul, The Roman Empire, in: Ariès, Philippe, Duby, Georges (Gen. Eds.), A History of Private Life, Vol. I, From Pagan Rome to Byzantium/Paul Veyne, editor, The Belknap Press of Harvard University Press, Cambridge, Massachusetts 1987, 5–233. von Essen, Ulrik, Biobanksforskning – forskares möjligheter att få tillgång till vävnadsmaterial och personuppgifter, Förvaltningsrättslig tidskrift, 2003, (2): 197–214. von Wright, Georg, Henrik, The good of man, in: Carson, Thomas, L., Moser, Paul, K. (Eds.) Morality and the Good Life, Oxford University Press, New York 1997, 147–163. Walton, A.S., Hegel, Individual agency and social context, in: Stepelevich, Lawrence S., Lamb, David (Eds.), Hegel’s Philosophy of Action, Humanities Press. Atlantic Highlands and New Jersey 1983, 75–92. Warren, Samuel D., Brandeis, Louis D., The right to privacy. The implicit made explicit, Harvard Law Review, 1890, 4: 193–220. Weinreb, Lloyd L., The right to privacy, in: Paul, Ellen Frankel, Miller, Jr., Fred D., Paul, Jeffrey (Eds.), The Right to Privacy, Cambridge University Press, New York 2000, 25–44. Westregård, Annamaria J., Integritetsfrågor i arbetslivet, Skrifter utgivna vid Juridiska Fakulteten i Lund, Nr 144, Acta Societatis Juridicae Lundensis, Juristförlaget i Lund, Lund 2002.

References

171

Williams, Bernard, A critique of utilitarianism, Chapter five, Integrity, in: Smart, J.J.C., Williams, Bernard, Utilitarianism. For and Against, Cambridge University Press, Cambridge 1973, 108–118. Williams Bernard, Moral Luck, Cambridge University Press, Cambridge 1981/1985. Williams, Bernard, Making Sense of Humanity, and Other Philosophical Papers, Cambridge University Press, Cambridge 1995. Williams, Robert R., Hegel’s Ethics of Recognition, University of California Press, Berkeley and Los Angeles 1997. Winfield, Richard Dien, Freedom as interaction: Hegel’s resolution to the dilemma of liberal theory, in: Stepelevich, Lawrence S., Lamb, David (Eds.), Hegel’s Philosophy of Action, Humanities Press. Atlantic Highlands and New Jersey 1983, 173–190.

Index

adaptation, 36, 37, 53, 63, 67, 68, 91 adaptive, 14, 33, 46, 62, 101 agency, 3, 34 agent, v, 3, 11–14, 18, 53, 60, 61, 136 agent, 73 Aho, Juhani, 3 Alpert, Sheri, 155 ambivalence, 45, 139, 140, 143–145, 147, 152 American Declaration of Independence, 111 amygdala, 39 Anderssein, 82 animal ethics, 54, 55 Annas, George J, 156 appraisal, 14, 35, 38, 39 Archer, Margaret S, 61 architecture, 15, 17, 37 Ariès, Philippe, 16, 29, 30 Aristotle, 55, 140 Arneson, Richard J, 105, 108 Ashford, Elizabeth, 137, 138, 144 Asplund, Kjell, 159 Aufhebung, 74, 87 autonomy, 12, 59, 73, 78, 79, 82, 102, 124–126, 128 Barthel, Sven, 3 Beauchamp, Tom L, 123 behavioural modules, 40, 42, 43, 46–48, 53, 145 patterns, 10, 16, 36, 48, 62 reaction, 37, 84, 133 response, 34 variations, 41, 56, 133 Bekoff, Marc, 11, 65 Benhabib, Seyla, 61 Bill of Rights, 111 biobanks, 78, 123, 124, 154–156, 158, 160

biological, 14, 36, 37, 39, 40, 51, 52, 55, 61, 69, 76, 78, 106, 116, 122, 127, 128, 143, 154–157, 159, 160 capacity, 36 component, 38 biologically constituted, 35 equipped, 36 blushing, 33, 34, 43, 44, 50 Boehm, Christopher, 65 Boesch, Christophe, 47 Boyd, Robert, 41, 66 Brandeis, Louis D, 92, 113–115, 123 Braunstein, Philippe, 28, 29 Brown, Peter, 26 Bråkenhielm, Carl Reinhold, 135 Calhoun, Cheshire, 137, 139, 140 Caplan, Arthur L, 54, 55 cerebral cortex, 39 Chartier, Roger, 30, 31 Childress, James F, 123 Christian, 20, 21, 26–28 Church, 20, 27, 30 citizenry, 75, 118 Citizens, 149 co-operation, 10, 19, 47, 51, 60, 63, 65, 68, 70, 100, 160, 162 cognitive, 11, 14, 33, 37–44, 46, 47, 49–51, 53, 54, 56–59, 61, 63, 64, 70, 72, 73, 92, 100, 107, 133, 145, 152, 153 Collste, Göran, 15 Common Law, 115 competition, 3, 10, 47, 68, 102 conscience, 28, 75, 117 consent, 14, 76, 106, 108, 111, 116, 122–127, 131, 159, 160, 162 constitutional theory, 117, 118 Contamine, Philippe, 27

173

174 Corbin, Alain, 19 Cosmides, Leda, 36, 40, 46, 62, 74 Cox, Damaine, 144, 145 Creel, Scott, 47 Croyle, R.T, 22 D’Hondt, Jacques, 75 Düsing, Edith, 80 Dallmayr, Fred, 61 danger, 5, 26, 36–38, 40, 43, 46, 50, 67, 102 Darwin, Charles, 36, 43, 49–51, 55, 65, 66 de Waal, Frans B M, 47, 62, 68 Deaner, Robert O, 63 DeCew, Judith Wagner, 106, 123 Declaration of human and civic rights, 110, 120 determinate judgement, 146 Dinka, 67 domestic, 18, 19 domestication, 56 dominance, 46, 47, 57, 60, 63, 64, 71, 80, 151 Drea, Christine M, 47, 64 Duby, Georges, 16, 27 Durham, William H, 41 eavesdropping, 94 Ekman, Paul, 36, 50, 69 Elias, Sherman, 156 Elster, Jon, 126 embarrassment, 32–35, 39, 41, 43–46, 48–50, 57, 60, 63, 68, 71, 91, 113, 133, 134, 143, 145, 151 embarrassment, 43 emotional basis, 42, 145 computing, 39 concepts, 39 evaluation, 36 motive, 41 reaction, 8–10, 14, 16, 33–40, 42–44, 50, 51, 135, 151 resources, 39 response, 35, 45, 48, 49, 57 sequence, 39 states, 40 structure, 39 Engelhardt Jr, H. Tristram, 105, 123 Etzioni, Amitai, 15 European Convention, 120, 121 evolutionary advantages, 10, 38 biology, 10, 12, 38, 46, 55, 57, 61 development, 38–41, 147, 157 function, 43

Index history, 3, 10, 16, 36, 44, 48 memory, 48, 91, 152 perspective, 33, 38, 39, 42, 47, 48, 65 pressure, 36, 47 psychology, 40, 45, 57, 93 reasons, 34, 101, 157 selection, 41 strategies, 38 fair play, 60, 141 Farge, Arlette, 23 fear, 4, 6, 28, 33–36, 38–41, 43, 46–50, 57, 60, 62, 69, 71, 91, 92, 113, 133, 141, 147, 148, 151 fear module, 38 Fields, William, 41, 50 Finch, Caleb E, 40, 156 Fischer, Kurt W, 33, 38 Flykt, Anders, 39 Frängsmyr, Tore, 111 Frank, Laurence G, 47, 64 freilassen, 81 Frey, R G, 94, 102 Fried, Charles, 99 Frijda, Nico H, 51 Geijerstam, Carl-Erik af, 3 genetic determinism, 66, 158 information, 9, 123–128, 156–158, 161 links, 22 program, 41 research, 14, 76, 156, 159 similarity, 22 test, 125, 161 Gerber, Scott D, 117 Grön, Arne, 141 Griffin, James, 58, 59, 100 Griffin, Sharon, 44 Grosfeld, F J M, 22 Guéhenno, Jean, 18 Guerrand, Roger-Henri, 19 Habermas, Jürgen, 61 Hall, Catherine, 21, 27 Hansson, Mats G, 57, 61, 107, 123, 127, 135, 138, 146, 158–160 Haviland-Jones, Jeanette M, 33, 63 Heeger, Robert, 54–56 Hegel, Georg Wilhelm Friedrich, 8, 12, 72–89, 114, 119, 140, 146 Helgesson, Gert, 159 hereditary, 2, 22, 43, 50, 64, 67, 124, 155 Hermerén, Göran, 107, 108

Index Hollis, Martin, 100 Honneth, Axel, 12, 74, 83–85, 104 Hopwood, P, 22 hostile, 10, 12, 26, 37, 45, 47, 64, 74, 80, 102 Hume, David, 45 incorruptibility, 70, 134 individual variation, 10, 37, 40, 156 informational privacy, 129 informed consent, 78, 106, 108, 122–125, 130, 159 inheritance, 4, 22, 51, 52, 63, 66, 76, 110, 125 inherited, 22, 36 Instrument of Government, 111, 120 intersubjectivity, 79, 81 intrinsic value, 58, 100 Isenberg, Arnold, 49 Jeffner, Anders, 135 Kahlbaugh, Patricia, 63 Kant, Immanuel, 12, 60, 61, 72–75, 79, 82, 86–89, 135, 138, 140, 144, 146–148 Kantian, 11, 12, 53, 60, 61, 73, 79, 127, 135–138, 146 Kennerberg, Owe, 28 Kettis-Lindblad, Åsa, 159 Kirkwood, Thomas B L, 40, 156 La Caze, Marguerite, 144 Laurie, Graeme, 101, 111, 124, 125, 128, 129 Lazarus, Richard S, 35, 37–40, 42, 43, 49 Lebrun, François, 27 LeDoux, Joseph E, 39 legal conventionalism, 118, 119 lettre de cachet, 23, 109 Levinas, Emmanuel, 81 Levine, Michael P, 144 Lewis, Michael, 33, 34, 40, 44, 45 liberties, 95, 97, 113, 120, 121, 131 MacIntyre, Alasdair, 141 Makkreel, Rudolf A, 147 Marc-Wogau, Konrad, 146 Marteau, Theresa, 22 McFall, Lynne, 135 media, 93, 96–98, 113, 114 medical ethics, 106, 124, 125 medical registries, 106, 122, 131, 160 mental functions, 39 processes, 36, 40 program, 36, 40, 63, 69 states, 40, 62, 63

175 mental tricks, 36 Meyerson, Bengt, 56 Miller, Rowland S, 34, 45 Mineka, Susan, 36, 38–41, 48 Montaigne, Michel de, 31, 32 moral authority, 51, 54, 73, 74, 88, 93, 103, 106, 111, 124, 127, 159, 160 moral autonomy, 73, 127 moral feeling, 146 moral integrity, 11, 12, 63, 69, 70, 144 moral subjects, 60 motivational structure, 38, 43, 68 Murphy, Robert F, 42, 100 Murray, Thomas H, 157, 158 mutual recognition, 76, 78–83, 153 Naess, Arne, 8 Nagel, Thomas, 95–98, 100, 108, 116 Naser, Curtis, 155 natural selection, 66 Neill, Elizabeth, 103, 104 non-interference, 2, 10, 73, 101, 108, 111, 112, 151, 153, 158, 160 Nuer, 67 O’Neill, Onora, 60, 74, 139 Öhman, Arne, v, 38–41, 46–48 openness, 74, 75, 78, 89, 102, 149, 161 outlier, 142 Panksepp, Jaak, 39, 46, 61 Parfit, Derek, 63 Parr, Lisa A, 69 patient, 1, 112, 124, 125, 129, 130, 154, 155, 158, 159, 162 Payne, Katy, 64 penetrance, 22, 127, 128, 156, 161 Perrot, Michelle, 17, 19, 25 Perry, Susan, 47 Phelps, Elizabeth A, 39 play, 10, 11, 14, 60, 65, 141, 151 political authority, 13, 52, 71–73, 78, 86, 88, 89, 92, 93, 99, 106–108, 110–112, 114, 117, 122, 129, 131, 133, 148, 153, 160 political insight, 131 political recognition, 111 Preuschoft, Signe, 69 pride, 33–35, 41, 43, 45, 46, 48, 49, 57, 59, 63, 68, 71, 91, 133, 143, 144, 151 property rights, 95, 113 Prost, Antoine, 18, 22–24 protective value, 56–58, 152 prudential, 59 prudential values, 59

176 purposiveness, 11, 53–55 Régnier-Bohler, Danielle, 29 Rachels, James, 94, 99, 100, 102 Rawls, John, 108, 135, 138, 143 reflective judgement, 146 Reiman, Jeffrey H, 99 religious, 20, 21, 25, 26, 28, 32, 50, 51, 68, 71, 88, 95, 97, 143, 148 Research Ethical Committees, 130 researcher, 96, 134, 142, 143, 145, 148, 159, 161, 162 Richerson, Peter J, 41, 66 Ricoeur, Paul, 81 Roman times, 16, 20 Roncière de la, Charles, 17, 20, 22 Rorty, Richard, 49, 50 Rosenberg, Alexander, 100, 101 Rouche, Michel, 25, 28, 109 Rutgers, Bart, 54–56 Rynning, Elisabeth, 123 Sands, Jennifer L, 47 Sartre, Jean-Paul, 23 Savage-Rumbaugh, Sue, 41 Scanlon, Thomas, 94, 98–100 scapegoat, 26 Schützgenossen, 61 secrecy, 95, 122, 156 Segerdahl, Pär, v, 41, 50 selection at group level, 67 self-determination, 78, 79, 82, 102, 124 shame, 6, 33–35, 41, 43–45, 134, 145 Siep, Ludwig, 79, 82, 86, 87 Simmel, Georg, 101 Sober, Elliot, 55, 65–69 social activities, 24, 143, 145 admiration, 34 advancement, 46 appearance, 44 background, 38 challenges, 40, 63, 91 communication, 45, 50 competence, 64 complexity, 64, 100 construction, 16, 32, 37 context, 8, 13, 36, 43, 44, 72–75, 79, 88, 93, 99, 101, 106, 112, 133, 134, 140, 141, 147 convention, 11, 44, 51, 70–72, 88, 93, 95–98, 101–104, 108, 114, 116–120, 149, 152 coping, 34

Index development, 18, 68, 118 developmental, 16 distance, 42 encoding, 41 ethics, 75, 82, 83, 85 expectation, 10, 11, 68–70 factor, 37 game, 42, 82 learning, 39, 63, 64, 69 life, 7, 10, 14, 21, 25, 32, 44, 47, 48, 57, 70, 72, 74, 86, 88, 91, 92, 99, 100, 102, 105, 106, 108, 129, 133, 152 organization, 67 play, 65 praxis, 88 recognition, 8, 12–14, 25, 45, 51, 71, 72, 74, 77, 80–85, 88, 89, 97, 104, 140 relations, 3, 9–11, 33, 34, 41, 50, 58, 59, 64, 65, 83, 84, 99, 102, 141, 143 relationship, 10, 34, 74, 92, 100 role, 22, 63 sensitivity, 41 status, 15, 46, 47, 64, 151 strength, 46, 151, 152 tapestry, 3, 16 warmth, 46 weakness, 46 socialization, 14, 18 solidarity, 23, 26, 46, 76 space, 2, 14, 17–19, 43, 45, 50, 51, 64, 80 spatial privacy, 129 spiritual, 16, 20, 21, 25–27, 29 Sterelny, Kim, 62 Stipek, Deborah, 34, 45, 46 Strömholm, Stig, 15, 95, 110, 113, 123, 130, 134 Strum, Philippa, 113, 114, 117 sublation, 8, 74, 80, 160 submission, 46, 47, 57, 60, 63, 64, 71, 80, 151 surveillance, 2, 13, 93, 94, 101, 116, 117, 122 Tangney, June Price, 33, 38 Taylor, Charles, 80 Taylor, Gabriele, 45, 135 teacher’s exemption, 115 teleological, 11, 53–57, 92 Thébert, Yvon, 16, 17 the spirit of the law, 87 Theunissen, Michael, 75 Thomson, Judith Jarvis, 92, 94–96, 98, 101 threat, 12, 20, 26, 28, 32, 34, 37, 39, 43, 46, 47, 84, 91 Tooby, John, 36, 40, 62

Index transparency, 74, 75, 89, 108, 131, 149, 153, 161 transparent, 62, 110, 114, 120, 160 Tugendhat, Ernst, 86, 87, 144 Tushnet, Mark, 95, 118, 119 Tyack, Peter L, 47, 64 Ulysses, 126, 127 universal, 12, 36, 37, 40, 50, 54, 73, 78, 79, 91, 97, 100, 146 Van Hooff, Jan A.R.A.M, 69 Van Schaik, Carel P, 63 Veyne, Paul, 16

177 von Essen, Ulrik, 156, 160 von Wright, Georg Henrik, 107 Wagner, Wendy, 155 Walton, A S, 88 Warren, Samuel D, 92, 113–115, 123 Weinreb, Lloyd L, 93 Westregård, Annamaria J, 15, 104, 121, 130, 131 Williams, Bernard, 134–138, 142, 144 Williams, Robert R, 74, 77, 79–82 Wilson, David Sloan, 65–69 Winfield, Richard Dien, 78, 88

Philosophical Studies in Contemporary Culture H. Tristram Engelhardt, Jr., Series Editor Kevin William Wildes, S.J., Associate Editor 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

G. Motzkin: Time and Transcendence. Secular History, the Catholic Reaction and the Rediscovery of the Future. 1992 ISBN 0-7923-1773-4 H. Tristram Engelhardt, Jr. and T. Pinkard (eds.): Hegel Reconsidered. Beyond Metaphysics and the Authoritarian State. 1994 ISBN 0-7923-2629-6 L.B. McCullough: Leibniz on Individuals and Individuation. The Persistence of Premodern Ideas in Modern Philosophy. 1996 ISBN 0-7923-3864-2 N. Capaldi: The Enlightenment Project in the Analytic Conversation. 1998 ISBN 0-7923-5014-6 K. Bayertz (ed): Solidarity. 1999 ISBN 0-7923-5475-3 S.A. Erickson (ed.): The (Coming) Age of Thresholding. 1999 ISBN 0-7923-5938-0 D.T. Schwartz: Art, Education, and the Democratic Commitment. A Defense of State Support for the Arts. 2000 ISBN 0-7923-6292-6 M.F. Carr: Passionate Deliberation. Emotion, Temperance, and the Care Ethic in Clinical Moral Deliberation. 2001 ISBN 1-4020-0143-6 M.E. Meaney, Ph.D.: Capital as Organic Unity. The Role of Hegel’s Science of Logic in Marx’s Grundrisse. 2002 ISBN 1-4020-1037-0 T. Halper: Positive Rights in a Republic of Talk. A Survey and a Critique. 2003 ISBN 1-4020-1783-9 M.J. Cherry: Natural Law and the Possibility of a Global Ethics. 2004 ISBN 1-4020-2223-9 M.J. Cherry (ed.): The Death of Metaphysics; The Death of Culture. Epistemology, Metaphysics, and Morality. 2006 ISBN 1-4020-4620-0 Not yet Published Not yet Published M.G. Hansson: The Private Sphere. An Emotional Territory and Its Agent. 2008 ISBN 978-1-4020-6651-1

springer.com