The public/private distinction is central to Western liberal society, arising from the pre-eminence within the latter of individualism. A private sphere embodies areas of life in which individuals are not subject to scrutiny, restraint or interference by society. The boundary between the public and private areas requires careful policing, for the division is in a constant state of flux. The law is crucial to this policing role and, also, to the very existence of the division itself.94 Indeed, the question of the existence of the public/private distinction in Western life and the problem of the sustainability of a division between the two spheres is, in essence, a debate about the limits of law. The law has little part to play in the private sphere so long as it is characterised by non-interference, nonintrusion and non-action by others.95 However, the law has a significant role as the prime motivator and regulator of human action in society in delimiting that sphere of life.
The history of privacy has been beleaguered by obscurantism and imprecision.96 Clarity of function and scope are essential to the development of a workable concept that is designed to protect the interests with which it is concerned. This is all the more true if legal protection of privacy is envisaged, and if this is to become a viable option. The primacy of the role of the law in resolving disputes over matters of value to our society and the individuals in it cannot be disputed. But to date, at least in the United Kingdom, privacy has not received a clear commitment from either the courts or the legislature. While the introduction of the Human Rights Act 1998 and the Data Protection Act 1998 goes some way to redressing this, their passing does not foreclose the need for further examination of the possible protection of privacy by legal means. This book does not set out necessarily to champion this cause, but it is nevertheless founded on a belief that the law has an important role to play and that it is a role which has been ignored for too long.
94 See O'Donovan, Sexual Divisions in Law, pp. 2-3.
95 Cf. C. MacKinnon, Towards a Feminist Theory of the State (Cambridge, MA, Harvard University Press, 1989), p. 191.
96 See generally ch. 2.
privacy: a role for the law?
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