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Privacy law: US “liberty” vs European “dignity”

These naked Germans are enjoying themselves in the middle of Berlin. I’ve been just as gleefully naked in Munich, Berlin and various other European places. To Germans and other continental Europeans this is a) fun and b) part of freedom. The word for public nudity, in fact, is Freikörperkultur (‘free body culture’), often abbreviated to FKK.

To Americans, of course, this tends to be awkward if not shocking:

“Don’t these Europeans have a sense of privacy?”

Then there is, for example, Monica Lewinsky and that whole thing with the president of the United States. A special prosecutor — nay, all of America — parsed every word of the country’s head of state, demanding to know exactly what these two had been up to in which closet — from “distinguishing characteristics” to stains on dresses and all the rest.

To Americans this was part of freedom — the free press and the right to hold government accountable.

To continental Europeans, by contrast, this was amusing at first, then awkward, then distasteful and finally undignified:

“Don’t these Americans have a sense of privacy?”

The Two Western Cultures of Privacy

So there you have it: two western cultures of privacy, each (being “Western”) deceptively familiar and yet incomprehensible to the other. Here are some questions, which fit perfectly into two of my threads here on The Hannibal Blog: the thread on America and the one on freedom.

  • What is privacy? What is to be kept private from whom, when, where and why?
  • And how does that interrelate with freedom and dignity?

James Q. Whitman

James Q. Whitman, a professor of comparative law at Yale, has written a profound article about exactly this. It is called “The Two Western Cultures of Privacy: Dignity Versus Liberty.” I recommend it. Here is the PDF.

For the rest of this post, I’ll try to describe the Atlantic culture clash and then the possible historical causes as Whitman sees them. In the next post, I’ll talk about two cases that are great examples of the two cultures. But first — and before you jump into the comments with your counterexamples (there are many) — note that Whitman himself admits that this is a matter of nuance:

The issue is not whether there is an absolute difference. Comparative law is the study of relative differences.

I. The clash

The conventional wisdom — with which I mostly but not totally agree — is that continental Europe has much stronger privacy laws than America does. In a long list of areas, Europe circumscribes what information can be circulated about people, whereas America hardly does so at all:

  • consumer data
  • credit reporting
  • workplace privacy
  • “discovery” in civil litigation (ie, rummaging around in the records of your opponents in a lawsuit)
  • the dissemination of nude images on the Internet
  • and so on.

As Whitman says,

I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?

By contrast, privacy is explicitly enshrined in European law (both national and EU law). For example, Article 8 of the European Convention on Human Rights protects “the right to respect for private and family life,” and the European Union’s Charter of Fundamental Rights features articles on “Respect for Private and Family Life” and “Protection of Personal Data.”

But Americans can counter with a different list to prove that it is actually Europe which allows the compromising of privacy:

  • those “private parts”! (= nudity)
  • baby names: Several EU governments restrict what parents can name their children!
  • Official ID cards/registration: In Germany, for instance, you have to register with the local police when you move to a new place.
  • Court-room use of evidence that Americans would consider illegally seized
  • phone tapping, which apparently happens much more often in Europe than in the US

So the question is: What’s going on here? How did these differences come about? As Whitman puts it,

Why is it that French people won’t talk about their salaries, but will take off their bikini tops? Why is it that Americans comply with court discovery orders that open essentially all of their documents for inspection, but refuse to carry identity cards? Why is it that Europeans tolerate state meddling in their choice of baby names? Why is it that Americans submit to extensive credit reporting without rebelling?

II. Causes: Liberty versus Dignity

Let’s first try to analyze the two cultures of privacy in terms of what each thinks must be kept private from whom and for what purpose.

a) Europe (= dignity)

European privacy laws aim to protect a person’s dignity. In practice, this means protecting the individual’s control over the use of his

  • image,
  • name,
  • reputation, or
  • information

So dignity is implicitly defined as control over one’s public image. You have a right not to be humiliated or embarrassed in public.

And who is the enemy/threat? Who would typically do the humiliating? Well, the press, or its new-media descendants today. Let’s just call them all the paparazzi.

b) America (= liberty)

American privacy laws, by contrast, aim to protect a person’s liberty. The word liberty is here defined in the traditional American (and quite narrow) sense of freedom from government tyranny. (Freedom can have many, many meanings: see here, here and here. ;))

Who is the enemy/threat in this culture?

Well, certainly not the press, whose freedom of speech is one of the things most in need of protection, even when that means that individuals (Lewinsky, Clinton) are being humiliated in public.

Instead, the enemy/threat is the state.

The locus of maximum protection, moreover, is not the public sphere (as in Europe) but the private sanctum of an individual’s home. The government must, to the greatest extent possible, be kept out of it. The police must (in most cases) not break in and search it. (This is true in Europe, too, of course, but the relative emphasis is stronger in America.)

In this culture, the right to privacy decreases as an individual moves further (physically or metaphorically) from his home. Once you’re in the workplace, in the subway, on the street, at the beach or otherwise in public, you’ve “asked for it.” Clinton, Lewinsky: you’re fair game!

Whitman puts the mutual incomprehension this way:

When Americans seem to continental Europeans to violate norms of privacy, it is because they seem to display an embarrassing lack of concern for public dignity—whether the issue is the public indignity inflicted upon Monica Lewinsky by the media, or the self-inflicted indignity of an American who boasts about his salary.

Conversely, when continental Europeans seem to Americans to violate norms of privacy, it is because they seem to show a supine lack of resistance to invasions of the realm of private sovereignty whose main citadel is the home—whether the issue is wiretapping or baby names.

Examples

Let’s take another look at the example of public nudity:

Europeans assume that you have a right to both nudity and dignity in public. So, for instance, the paparazzi (or neighbors) do not have a right to take a picture of you and then put it on the internet, because you must remain in control of your public image. It’s not even OK for others to stare at you. (I’ve gotten in trouble over that.)

This concept of private public nudity is entirely alien to American law. In fact, it sounds oxymoronic (perhaps even just moronic) to Americans. They assume that once you have left the sanctum of your home and entered a public space, and indeed metaphorically shed the “walls” of your mobile “home” in the form of clothes, you can no longer expect privacy. You have, as it were, asked for it.

Just one illustration: The US Supreme Court’s 1995 decision in Vernonia School District v. Acton.

The question before the court was whether high school athletes could be subjected to mandatory drug testing. Yes, they could, said the court, because — and this is the logic that confounds Europeans to the point of making them guffaw — athletes regularly shower together (naked, we assume), and by voluntarily exposing themselves, these athletes can therefore expect less privacy, which means it is OK to test their piss.

(This might also shed light on the debate we had when I proposed “shaming” people who text and drive by snapping pictures of them and publishing them on the web. It seems that we are “free” to implement my idea in America, but not in Europe, where this might compromise the dignity of the drivers.)

III. History

So where do these fascinating differences come from? The conventional answer is that Europe after the Fascist horror of the 1930s and 40s, and in particular Germany after the Nazis, corrected for the sheer indignity of those crimes against humanity by elevating human dignity to the highest value.

I happen to believe this is largely correct (Whitman does not, and in my opinion this part of his thesis is the weakest). For example, Germany’s constitution, written in 1949, explicitly starts with the phrase

Die Würde des Menschen ist unantastbar (The dignity of each human being is untouchable)

I pointed to this in my post on the different views of healthcare in America and Europe, and alluded to it in my post on the different attitudes toward prisoners. (European law protects the rights of prison inmates “to a degree almost unimaginable for Americans,” as Whitman puts it. The European in me is shocked by the prison conditions in America.)

But Whitman traces the origins of the differences between America and Europe several centuries further back, and this is the most fascinating part of his argument. So here, in brief, are the histories of privacy law in Europe (France and Germany) and America:

1) Europe

In Europe, the concept of dignity “descends” from that of honor and the so-called law of “insult” that accumulated over the centuries around it.

In a nutshell, what we are talking about here are a bunch of toffs dueling, as in the picture above. It was aristocrats and other high-status individuals who protected their honor (ie, their “public image”), both from the prying eyes of the press and from insult by others. Gradually, society lost its taste for cleaning up the gore after duels and encouraged the toffs to meet in court instead.

What Europe’s various revolutions, starting with the French one in 1789, did over time was to elevate more and more low-class individuals to the same “royal treatment.” Eventually, after World War II, all Europeans became entitled to it, just as all adult French and Germans, of whatever status, could now expect to be addressed by other adults as vous or Sie.

France

France and Germany, took subtly different paths to get to the same place: In France, the main body of law was written during the 19th century in response to famous artists and writers doing sexy things of a questionable nature. (I know this comes as a shock.) I’ll highlight one such case, involving the author of The Three Musketeers, in the next post. In most cases, whenever the dignity of a prominent individual was threatened after sexy photos of him or her were published, even when that individual had expressly sold the right to those photos (!), the courts opted to preserve dignity.

Germany

In Germany, also during the 19th century, the individuals whose cases drove the law forward were not so much lascivious artists but brooding philosophers. (Again, I know this comes as a shock.)

Influenced by Hegel, Kant and their ilk, the German lawyers wanted to prove the pre-eminence of free will. They went all the way back to ancient Rome and the law of my hero Scipio to re-interpret the Roman law of “insult” (injuria). From this, they constructed the concept of Persönlichkeit (personality or personhood), which is often used in the same contexts that Americans use liberty but with a twist.

In a nustshell: To be free meant, as Whitman puts it,

to exercise free will, and the defining characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture in their full richness…  The purpose of “freedom” was to allow each individual fully to realize his potential as an individual: to give full expression to his peculiar capacities and powers.

(Sounds a lot like Abe Maslow’s self-actualization, don’t you think?)

In any case, both the French and the German legal traditions put much less emphasis on the sordid American obsessions with consumer sovereignty and commercial freedom (credit reporting, for example) and much more emphasis on creativity and the presentation of self, of Persönlichkeit in all its eccentric splendor.

2) America

America, by contrast, embarked on the journey of privacy law with the Bill of Rights. And it focused on limiting state power. The Fourth Amendment specifically establishes the right against unlawful searches and seizures as the main expression of privacy.

Searching and seizing is usually done in one’s home, so right from the start, the concept of privacy resided there.

Of course, there have been American lawyers over the years who have tried to make American law more “European”. The main attempt was “The Right to Privacy” by Samuel Warren and Louis Brandeis in 1890. But these attempts never went far.

Property rights and/or freedom of speech almost always prevail in American courts over appeals to privacy and dignity. Whitman cites, for example, the Supreme Court’s decision in Cox Broadcasting Corp. v. Cohn and Florida Star v. B.J.F. In these cases, the media published the names of rape victims. In both cases the Supreme Court found that the First Amendment protected media outlets against suit. European courts would have been concerned with protecting the rape victims. Ironically, because those victims might once have been aristocratic toffs.

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54 Comments Post a comment
  1. The Clinton-Lewinsky scandal was effectively spun into a sex scandal. The impeachment, however, was over a matter of perjury (false statements under oath). Some strongly felt that there was a matter of character involved also but that was countered by painting those who felt that way as “prudes” or “Puritans”.

    My personal concern in this issue was that the president, by engaging in affairs, was leaving himself open to blackmail by any foreign nation who gained knowledge of these affairs. I would have been less concerned if the affairs had been public knowledge which would have destroyed their value in blackmail. I must admit that character is also important to me and I wonder about a man who could violate vows made to a wife and how that might indicate about his willingness to violate an oath of office.

    As to the “public humiliation” of the Clintons, I would place the blame for that on the one who committed the humiliating act, rather than on those that exposed it. Otherwise, we should be blaming the police for catching those that break the law rather than the lawbreakers themselves.

    I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?

    How do merchants in Europe confirm credit viability of a (potential) customer?

    Americans actually do carry “identity papers”. These are generally called “photo ID” and usually consist of valid driver’s licenses or state issued identification cards. These are often requested by merchants to confirm the user of a credit card is, indeed, the owner of said card. The police often ask for these when a person is stopped, with cause, and informally interrogated. The issue of “cause”, however, is a bit touchy.

    “So dignity is implicitly defined as control over one’s public image. You have a right not to be humiliated or embarrassed in public.”

    “Europeans assume that you have a right to both nudity and dignity in public. So, for instance, the paparazzi (or neighbors) do not have a right to take a picture of you and then put it on the internet, because you must remain in control of your public image.”

    That seems quite contradictory to me. But, then, disrobing in public just doesn’t seem to resonate as dignified to me.

    The indignity of revealing someone’s pay was effectively demonstrated in our recent scandals involving financial problems, executives’ compensation, and bailouts. It is apparently not an indignity to expose the pay of star athletes and movie stars.

    You misrepresent the actual ruling in “Vernonia School District v. Acton”, there was much more involved that the fact that they took “athletes regularly shower together (naked, we assume)” Quite a bit more. It was actually sound law and based upon reasonable expectations of privacy. If I may quote from the majority opinion…

    “Somewhat like adults who choose to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.”

    You might want to read the opinion before making comment on it.

    I will finish by saying… The United States is not a European nation. It has its own, unique, culture and history. We, in the US, are often lampooned for not being as sophisticated as Europeans and for being intolerant of other cultures and their morals and cultural taboos. Yet, for some odd reason, our own seem to be what we might call fair game. I mostly find that amusing and tend to snicker about the hypocrisy evident.

    All of the above, of course, is my own opinion and protected under the laws of copyright and the First Amendment.

    March 5, 2010
    • I think Whitman used the example of Lewinsky/Clinton not for the question of the president’s perjury but for the process that led up to it. After all, you first had to have a special prosecutor asking questions that, in Europe, would never have been asked, out of respect for the “dignity” of the people involved (in the alleged sex).

      Credit reporting: The relative (not absolute) lack of it does in fact mean that consumer credit flows less abundantly and easily in Europe. This is fine with most Europeans. In fact, this shows you the implicit trade-off: European law has, as Whitman shows in several ways, an anti-commercial undertone.

      “… disrobing in public just doesn’t seem to resonate as dignified to me…”:

      That’s exactly the sort of culturally determined statement that Whitman wants to examine.

      Vernon School District v Acton: I will try to find time to read the whole opinion. I used Whitman’s considered summary.

      Your conclusion — ie, your defense of the US against alleged charges of unshophistication — seems out of place here. Nobody — neither Whitman nor I in this post — lampooned the US. Or Europe. Well, on this blog I like to have juicy language, but that’s another matter. What Whitman did was to dig to the historical roots of deep and fascinating differences in relative emphasis on distinct values. That’s great scholarship, not lampooning. You will note that all traditions — the US, French and German ones — were “fair game”

      March 6, 2010
    • Much of my commentary was tongue in cheek. Though I find that when someone is critiquing cultures relative to other cultures, there is often a bias apparent. For example, is Canadian culture more European in these areas or more inline with the US? Each culture is unique, having its own foundational construct and evolution. Since WWII, there has been more of a blending of the various cultures of the developed world or at least an attempt to do so. But there is still a long way to go.

      March 6, 2010
    • Jim M. #

      Another perspective:

      Americans have been voting for a quarter of a millennium. For a vote to be cast meaningfully the voter needs accurate information: hence, John Peter Zenger’s acquittal (1735), the First Amendment (1791), the Pentagon Papers Case (1971), and so forth.

      In Europe as a whole, voting is a comparatively recent right, in some instances imposed by military occupation (as just recently happened in Iraq and Afghanistan). The attendant traditions of free speech and free press are, perhaps for that reason, less strongly rooted, less jealously guarded, and less well understood. Europe recognizes a broader right of privacy, but what you don’t about a politician can hurt you — just look at history.

      (Also, many politicians in postwar Europe wanted to put their past behind them; one cannot rule out that this may have encouraged their comfort with privacy rights.)

      March 9, 2010
    • For a vote to be cast meaningfully the voter needs accurate information: hence, John Peter Zenger’s acquittal (1735), the First Amendment (1791), the Pentagon Papers Case (1971), and so forth.

      It is interesting that most polls show a decided level of general ignorance on the part of the average American citizen about current issues and events. This in spite of a tradition of press freedom and competition in the business of news reporting.

      If I recall correctly, a number of polls show an overwhelming majority of respondents desiring that “government spend less but provide as much, or more, services.”

      March 9, 2010
    • When the Founding Fathers framed the constitution they could have vested power in “the smartest guys in the room,” themselves, but they didn’t.

      Instead they gave us a recipe, the Constitution, that structures the discussion so that even “the dumbest guys in the room” are heard. Of course, sometimes it’s the “stupid” ones who have the answer.

      I am wary of polls that suggest people are ignorant. Don’t these “ignorant” people do almost all the work in the country? They built the country and keep it running. No mean feat. 

      March 10, 2010
    • I am wary of polls that suggest people are ignorant. Don’t these “ignorant” people do almost all the work in the country? They built the country and keep it running. No mean feat.

      Did they build and keep this country (USA) running? Or did the Founders run it for its initial number of years (look at who the early presidents were), industrialists like Rockefeller, Carnegie, Phelps Dodge, Samuel Slater, the DuPont family, Henry Ford, etc. build and run it?

      We do like to say the man in the factory, the western pioneer, the gold miners, the common man built this country and made it great but the truth is that he didn’t. Don’t get me wrong, without a strong sense of individualism, without a belief in being able to rise above the circumstances of his birth, without a nation that supported the individual politically and culturally, we’d have turned out much different than we are today.

      We have a mixed view. On the one hand, we tend toward acceptance of a kind of aristocracy (Rockefellers, Kennedys, Bushes, Lodges, etc) while also recognizing and celebrating those who came from obscurity.

      But doesn’t drive you mad when a poll reports “and 12% had no opinion”?

      March 10, 2010
    • Only the first paragraph should have been in italics. Sloppy, Douglas, sloppy.

      March 10, 2010
    • American #

      Douglas,

      You say “most polls” show a “decided level of general ignorance…” Really? Who decided… you? Or were the questions perhaps designed to point toward a conclusion of ignorance, as many commissioned polls are?

      You offer your own example saying, ‘a number of polls show an overwhelming majority of respondents desiring that “government spend less but provide as much, or more, services.”’

      Ignorance would be concluding that this means Americans are foolish to think that government must improve without spending more money.

      But if you think the only way to increase quality and productivity of governments is to spend more money, then it is you who are ignorant my friend. Government must be forced to be efficient by reduced bureaucracy and improved processes. Giving them more money to solve problems never works… it just drains the public trust.

      April 6, 2010
    • @American

      First, yes, it is I who decided that the polls show a decided level of general ignorance. The primary indications is the “have no opinion” category which all too often tends to be in double digits. Remember, “ignorance” is a form of “ignore” and something people choose rather than “are”. Still, those may be the most honest respondents.

      Ignorance would be concluding that this means Americans are foolish to think that government must improve without spending more money.

      Not “must” but “could” and I might take issue with “improve” also. More services is not necessarily an indication of improvement but is indicative of growth. Growth takes money.

      But if you think the only way to increase quality and productivity of governments is to spend more money, then it is you who are ignorant my friend. Government must be forced to be efficient by reduced bureaucracy and improved processes. Giving them more money to solve problems never works… it just drains the public trust.

      I could not agree more. But I do not believe adding services encourages efficiency.

      April 7, 2010
  2. That French and German, and arguably most other languages, have, unlike English, different pronouns (eg “vous” and “tu”; “Sie” and “du”) for when one speaks to friends and when one speaks to strangers, bespeaks that non English-speaking societies (eg those in Europe) are, prima facie, less egalitarian than English-speaking ones.

    English seems to have only “sir” (or “madam”) to indicate respect, and they are used but rarely. Paradoxically, we English-speakers use “sir” mainly when we wish to say something unpleasant to someone we don’t like – “You, sir, are a scoundrel”.

    March 5, 2010
    • Interesting hypothesis.

      It also strikes me that “egalitarianism” may be very different from “equality”.

      March 6, 2010
    • Jim M. #

      Some quotes on dignity and America, from Alexis de Tocqueville’s Democracy in America:

      “In democratic countries manners are generally devoid of dignity, because private life is there extremely petty in its character; and they are frequently low, because the mind has few opportunities of rising above the engrossing cares of domestic interests. True dignity in manners consists in always taking one’s proper station, neither too high nor too low; and this is as much within the reach of a peasant as of a prince. In democracies all stations appear doubtful; hence it is that the manners of democracies, though often full of arrogance, are commonly wanting in dignity, and, moreover, they are never either well disciplined or accomplished.”

      “The men who live in democracies are too fluctuating for a certain number of them ever to succeed in laying down a code of good breeding, and in forcing people to follow it. Every man therefore behaves after his own fashion, and there is always a certain incoherence in the manners of such times, because they are moulded upon the feelings and notions of each individual, rather than upon an ideal model proposed for general imitation.”

      “It is reasonable to expect that over time the people of America will resolve themselves into two distinct classes: supermodels and everyone else.”

      (I am still trying to verify this last quote.)

      March 11, 2010
    • Jim M. #

      As I suspected, the third “Alexis de Tocqueville” quote above is apocryphal.

      But the source for first two Alexis de Tocqueville’s quotes is Democracy in America, Chapter XIV, Some Reflections on American Manners :

      http://xroads.virginia.edu/~Hyper/DETOC/ch3_14.htm

      March 11, 2010
    • Beautiful quotes (the real ones) and funny addendum, Jim M.

      Which reminds me: I should get myself a good old-fashioned paper copy of Alexis. Perhaps even include him in my pantheon of great thinkers?

      March 13, 2010
  3. Richard Manchester #

    Professor Whitman’s comprehensive and informative 2004 paper about European attitudes to privacy as compared to those in the US, at historical, philosophical, social and legal levels, all scrupulously documented (as is only to be expected) can only be admired . It is particularly timely both in relation to international law, the comity of nations and the advance of the internet.

    What I did find surprising, nevertheless, was his almost total neglect of British culture and law, which has been developing for a thousand years or more. It is British law and culture which finds itself buffeted between the demands against our sovereignty made within the EU and the strong historical and cultural ties with North America.

    Professor Whitman also neglects the practical effects of contrasting laws, privacy being only a small part. (May I point out in passing that in the one hand, in the UK, we face the prospect of trans-European law enforcement in an environment where common law and civil law clash and on the other, for example, a questionable extradition arrangement highly favourable to the US: the UK still awaits a reciprocal law in its favour, but this has not prevented the US from exploiting its new rights against our citizens with full vigour. )

    Professor Whitman does not mention defamation at all – highly relevant to the question of privacy. There is pressure from the international community to water down our libel laws. This pressure is not necessarily wrong, since in modern times a country can be profoundly affected by the laws of another, something else which the paper does not address. It is an interesting cultural point, though, that contract law, libel (not criminal libel) and slander in England and Wales – all relevant to this discussion – grew out of the common law of trespass.

    Social problems are exacerbated by legislators everywhere who seek to use the law as an instrument of social reform, rather than as a system to resolve individual disputes between citizens or between the citizen and the state (principally to protect the private citizen against arbitrary intrusions by the State – which should also be the principal function of a free press). This is at the root of my unease about written constitutions, however fine or accomplished those constitutions may be.

    In the UK we succeeded in the Union because we allowed Scotland its own laws. Today we suffer the indignity of laws imposed from a sovereign Europe which intrude daily upon the minutiae of our lives. Those who reflect upon these matters with anxiety would thus find Professor Whitman’s appeal to tolerance in his conclusion a little complacent, perhaps, in its inherent assumption that a nation’s laws truly reflect its culture or “embody the basic commitments of [a]society”. There is also hardly any reference to the practical effect of the conflict of the laws of privacy, let alone guidance towards a solution of the problem.

    The freedom to name one’s child seems a minor question compared to the foregoing. In England and Wales it is easily resolved. In the absence of fraud, anyone of the requisite capacity is free to change his or her own name at any time without any formality. There is an odd anomaly in that Christian names (as opposed to other given names) may not be changed, but this is ignored, even if one chooses to record a change by some formality or another.

    March 5, 2010
    • Richard Manchester #

      P.S. – It is noteworthy that the British Vagrancy Act of 1898 outlawed indecent exposure only by men. It was not until this century that the Act was repealed in its entirety. Exposure was also dealt with, for both sexes, as a breach of the peace. The significance here is that it was proscribed because of its effect on others rather than as a question of principle. There is no shame in the human body as such, and the Victorians were more liberal than is commonly supposed. My father, who was a Victorian ( just) was very liberal and told me that it was a common sight to see women feeding their babies in public – by some now regarded an outrage.

      I’m a bit rusty and my references may not be wholly reliable, but the observations remain good.

      March 6, 2010
    • Richard Manchester #

      P.P.S. Sorry to be so piecemeal, but I was up all night reading the paper and knocking out these comments. It concerns the general thread of freedom. There is a presumption of freedom under the Common Law. In Civil Law systems I believe, since I am not an expert, the reverse is true: the law has to grant freedoms.

      The Common Law approach is to my mind, the less intrusive and more human. Whichever is to be preferred, this, I submit, is another major source of the differences between jurisdictions, alongside differences in culture.

      March 6, 2010
    • yes, it’s sort of a pity that Whitman didn’t get into British and common law to complete the picture. Then again, his article is already long and you can’t research everything before you say anything. I guess he chose traditions that he considers antipodes, and the British tradition is probably in the middle.

      Re Libel law: that seems to be an interesting one in the UK. In this area, British law falls clearly into the “dignity” camp, which sees the press as the potential threat to the honor of high-status persons. The Economist is at special risk, because we are read all over the world but, unlike our US rivals, are based in Britain, so regimes and people are often tempted to sue us first, knowing that the British courts are more likely to be in their favor than American courts might be.

      March 6, 2010
    • Richard Manchester #

      Yes, there is no question that the application of British defamation law has got out of hand, particularly where the level of compensation awards compared to awards for personal injury is concerned. The reason for this is to counterbalance the resources of the press, and so it is difficult to know what the answer is.

      If one starts from the presumption, however, that the main purpose of a free press is to protect the private citizen against the excesses of the state, one wonders why there is all this fuss. The public interest defence has already been extended, and so it is clear that the press wishes to attack private reputation with impunity.

      One can see the cultural influences at work here in the way that Phil describes in his comment.

      March 6, 2010
  4. Liberty and dignity are not mutually exclusive…

    http://www.scribd.com/doc/22328155/The-Dignity-of-Humanity

    March 6, 2010
    • Indeed they are not. And nobody said they were. (You noticed that I put the two words in quotes in my title.)

      March 6, 2010
  5. The European and American systems of law spring, as Richard has pointed out, out of different cultures.

    Il me semble that European culture is more introverted; and American culture more extroverted, being arguably the most extroverted of all cultures. Thus, while the European may spend his Sundays reading Proust with a glass of Chardonnay, or going alone to an Ingmar Bergman film; the American may spend his Sundays watching NASCAR racing with a pitcher of Bud, or going with his many friends to a James Cameron film.

    Hence European law tries to protect the inner (introverted) self, in the form of feelings (dignity); and American law tries to protect the outer (extroverted) self, in the form of freedom of action (liberty).

    March 6, 2010
    • A bold thesis indeed, Phil.

      I suspect that both the Chardonnay European and the NASCAR American will be contested as archetypes here….. ;)

      March 6, 2010
  6. The eyes are the “windows to the soul,” yet no one seems particularly concerned about concealing their eyes. I’ve seen so-called “private” parts blurred out on pictures and on TV, but never a person’s eyes.

    Humans, and Americans in particular, act as if their bodies from the neck down were the windows to their souls. In reality, our bodies are more like the windows to our diet. I conclude, therefore, that the human soul must be located in the stomach.

    Domestic Tranquility, common defence, general Welfare, Blessings of Liberty. No mention of privacy in the Preamble nor in the rest of the Constitution. Only a few veiled references, such as no unreasonable search and seizures, the right to deny soldiers shelter during peacetime, and the right against self-incrimination.

    Having lead a bi-continental life, I just want my dignacy.

    March 6, 2010
    • @Peter G

      applause

      Americans, in general, are a paunchy, squishy, pale lot. There isn’t much dignity apparent in the exposure of that. I once, when much younger, had little problem with being naked. But as time and gravity advanced, that changed. Andreas’ picture of leisurely nudists seems to be bereft of the older citizens.

      March 6, 2010
    • In the spirit of empiricism and the scientific method, I ask that you, Peter G, join me in an experiment starting at 8AM tomorrow morning and lasting 24 hours:

      We will both wear sunglasses to veil “the windows to our soul” … and nothing else. And we will record the reactions of society.

      Should we inadvertently meet during the experiment (and assuming there are no others who fit our description) we will simply pretend not to see each other and carry on….

      March 6, 2010
    • Since I happen to reside in New York and not in sunny Southern California, the outcome of your brilliant little experiment is a foregone conclusion: you’ll get arrested, and I’ll freeze to death before the cops get ahold of me.

      Temperature concerns aside, of course people would be shocked to see a bunch of naked guys with sunglasses walking around in public. That’s my whole point: we consider our bodies (or at least certain body parts) to be “private,” yet no one seems to mind the public display of our eyes as if people’s souls were the least private parts of all.

      March 6, 2010
    • In America, baring one’s soul is considered a sign of courage. Consider Oprah and various other talk shows (usually aimed at women and on during the day) but it extends to presidents or political candidates brushing a tear (real or faked) away at a funeral (or choking up when speaking of some disaster or personal tragedy) to even NASCAR winners tearing up during post-race interviews.

      At times, wearing sunglasses is considered rude because one cannot look you in the eye and tell if you are being honest.

      Oddly, we have no problem with Secret Service agents wearing sunglasses at all times (outdoor and in) as they guard the president, his family, and lesser luminaries.

      March 7, 2010
    • Bottom line, what should be considered our most private parts–our eyes, as they afford insight into our hearts and minds–are not considered private parts at all. In fact, they’re our most public parts such that one can even get in trouble for hiding them. Fascinating.

      March 7, 2010
  7. By the way, how much do you make at the Economist?

    March 6, 2010
    • Duel insurance is included.

      March 6, 2010
    • That’s cute. So you want to keep your salary private. How European.

      Myself, I earned a gross total of $24,072.49 in 2009, and I currently pull in $375/week in unemployment benefits.

      The fact that I have no problem sharing this information with the world proves that I’m a lot more of an American at heart than you are. I hate to be the bearer of bad news, but you clearly pitched your tent on the wrong side of the Atlantic.

      March 6, 2010
    • Oh yes, I’m unapologetically European in this regard.

      Incidentally, are you calling the experiment off, then? I’m still sitting here naked but for my sunglasses….

      March 7, 2010
    • Grrrr. Not sure how to break this to you, but here in the North East we have something called “seasons.”

      March 7, 2010
  8. Some random thoughts before I retire for the night:

    - There are societies of people, who would be called “primitive”, who don’t at all like it when visitors from overseas take photos of them. The photographees consider that the camera is stealing their souls (dignity).

    Perhaps Europeans intrinsically feel the same, so this is why European law protects peoples’ rights to images made of them (dignity). Perhaps, then, primitive peoples and Europeans are on to something which Americans aren’t.

    - In the US, if you shoot dead someone’s pet dog for no good reason, the owner can now successfully sue you for $50,000 and upwards, even though he had only paid $100 for his dog.

    US law is therefore beginning to recognise the validity of mental distress at the death of a pet, and this is reflected in the increasing amount of damages awarded in pet death cases. This is related to the concept of dignity.

    - I’ve read that in many schools in the US (perhaps mostly in Californian ones?) students are given mandatory courses in self-esteem (dignity), the better to recognise instances when they are treated in a way which robs them of their self-esteem (dignity).

    If what I’ve read about this is true, then es scheint mir this will eventually be reflected in US law.

    Therefore in matters of dignity, US law and European law may be converging.

    March 7, 2010
    • After I posted my comment above, I re-checked my sources for what I said about monetary damages for pet deaths in the US.

      It seems that what I said does not apply in most US states, which regard a pet merely as property. Hence you can sue only for the market value of the animal.

      However, in Oregon Washington and Illinois, pet owners have successfully sued for emotional suffering on the wrongful death of a pet. The damages in 3 cases were respectively: $27,000; $30,000, and $136,000 (this was for for 4 dogs, working out to $34,000 per dog).

      March 7, 2010
    • For what it’s worth, I recently mediated a case where a pet store forgot that little Speck was in the dryer cage. It was an agonizing death for the dog and emotionally upsetting for the family including the children. And of course, the pet store workers were also devastated and remorseful.

      Generally speaking, pets are chattle which is any property that is not real property are otherwise a fixture attached to real property. The traditinal measure of damages is the cost of repairing the item or the fair market value of the item if it was destroyed. (This is not replacement value).

      Needless to say, the parties are far apart on what is fair and acceptable in terms of settlement.

      March 23, 2010
    • It is interesting to see the parallels to English Law, Steve.

      “Land” is a term of art which, by statute, includes real property and all interests in real property, or estates in land, as we would call them. A very handy word to use.

      Despite that, the case law on fixtures is somewhat ambivalent. First, you establish whether an item is fixed to the land in some way: if it is, then prima facie it is part of the land.

      The presumption can, however, be displaced. If an item is there for the enhancement of the use of the land, rather than for its own sake, then it is a fixture, even though it is not attached in any way. Conversely, if an item is securely attached to the land for its own sake, then it is not a fixture.

      Thus, even though a decorative statue, not being a work of art, placed beside a lake to enhance the outlook, is unattached, it is, nevertheless, a fixture. On the other hand, a Rubens fastened firmly to the wall will not be a fixture.

      It is important in practical terms, of course, because only fixtures will pass in a contract for the sale of land, unless express provision is made otherwise.

      I cannot imagine that a pet would, under any circumstances, be held to be a fixture, nor would any livestock.

      March 24, 2010
  9. I’ve been just as gleefully naked in Munich, Berlin and various other European places

    I’ll have to go back and check my photos of all the nudists on the lawn, there by the river in the Englisher Garden District.

    And Phil, come on!

    March 7, 2010
  10. Thanks for a fascinating and thought-provoking post. It’s interesting to read in connection with the Academy Awards hoopla in the US.

    March 9, 2010
  11. Tom Foster #

    I’m a first time commenter, and a long time reader of your blog. I’ve only been reading it for the last three months, but I consider myself a long time reader because, having found your blog, I read it back to the first post.

    I want to thank you for one of the most wide-ranging, erudite and consistently interesting blogs on the internet. I often find personal meaning even in your posts addressing wide or abstract issues, and this post is one of them.

    I’m British, and always fascinated by the position of my country between America and (continental) Europe. It took me a while, but I eventually worked out how this ambiguous position relates to me personally. My conclusion is that generally I’m culturally European but politically American. It may seem difficult to separate culture from politics, but having been forced to do it I find myself by turns confused and enlightened by the distinction.

    On the question of privacy vs dignity I find myself personally drawn to the European position. I would never discuss my salary unless I was left with no polite alternative, and I happily make the sacrifices to self-expression needed to preserve control over my public image (to the modest extent that I have one!) I find the American tradition of public confession (as pointed out by the commenter Douglas) deeply discomforting.

    Politically though, I can only embrace the American system. I happily make sacrifices of self-expression to preserve my dignity because I believe the consequences of legal protection for dignity, in that sense, are unacceptable. I support the various efforts to reform Britain’s libel law to remove the bias in favour of the claimant. However unpleasant I find it to see the private affairs of politicians exposed, I fear more the consequences of allowing public figures too wide a private space, and the risk of them hiding other, darker, secrets there. I hope that we will eventually find a balance, and I recognise there are some areas in which a right to privacy is beyond dispute, if not always adhered to, such as the lives of politician’s children. Still, politically the presumption must be that what happens in the public sphere is public, however culturally unpleasant I find that.

    Multiculturalism, as a reality rather than a doctrine, if forcing us all to reconsider the relationship between culture and politics. This is my starting place.

    Thanks again for the blog, and all the thoughts it provokes.

    March 10, 2010
    • Dear Tom,

      you’ve made me very, very happy indeed.

      I know from WordPress’s Statistics feature that only a tiny fraction of the Hannibal Blog’s readers leave comments. (Perhaps some find it intimidating. I wish I knew how to change that!)

      So I’m thrilled that you’ve jumped in, and ecstatic that I’ve been able to stimulate your thinking from time to time with my posts.

      As I’ve said many times before, blessed is he who has sophisticated readers!

      Your thoughtful and personal comment also leads me to another observation: Many of the posts here on the Hannibal Blog are not about answers to something or other, but about understanding why the answer (to whatever) is so difficult to find and elusive. It’s possible that, by personality, I tend to be more interested in understanding dilemmas, differences and conundrums than in solving them.

      March 10, 2010
    • “…….I know from WordPress’s Statistics feature that only a tiny fraction of the Hannibal Blog’s readers leave comments………”

      Perhaps for “readers”, you should have said “visitors”, for I have a hunch that of those who visit any blog, the percentage who actually read it are quite small.

      I’ve looked at site meters of some blogs with large numbers of visitors, and at least half come in because they clicked on images (from Google or Bing images) contained in blog posts. So these visitors only want to see pictures.

      If you are relying on WordPress stats to get numbers of “visitors”, I have reason to think they are inflated by as much as one quarter. So, for one reason and another, it may be that your regular readers are a small fraction of your “visitors”.

      Therefore, the percentage of your readers (the real ones) who deign to leave comments, may be much higher than you suppose.

      March 10, 2010
    • Mr. Crotchety #

      The Hannibal Blog statistics are inflated by me. I check every minute to see if I’ve made a connection with anyone else in this vast, lonely universe. (then I try to distance myself)

      March 11, 2010
    • But of course! I should have known…

      March 11, 2010
    • dafna #

      ha ha ha mr. crotchety. thanks for the laugh! you may now distance yourself!

      you have made a connection by revealing the annoying habit of refreshing the screen randomly and obsessively thereby inflating or skewing the hannibal blog statistics… i too do this, so now you must distance yourself.

      March 12, 2010
  12. In case it’s not already obvious: I just changed comment threading from 10 levels deep to 4 levels deep.

    (Boy, what a mouthful of blogging jargon that is).

    The comment replies were getting way too narrow to be readable, so now, after four replies to one comment, just start a new comment and say @NAME or whatever.

    March 13, 2010
  13. Great post! I’m a lawyer writing from Peru. It would be great to analyze the Latin American situation regarding privacy laws. We are adopting the European model through data protection legislation but it would be great to explore historically the origins of our conception of privacy.

    June 9, 2010
  14. Hi, and Happy New Year! Found your blog while looking for
    somebody to explain Hegel to me. However, this theme is something I
    talk about with Germans almost daily. I like your “How I write”
    blog, too. I will try ditching my chair! Thanks for writing…
    Hayes

    January 3, 2011
    • Thanks, Hayes, and welcome to the HB!

      January 3, 2011
  15. A. Mueller #

    citation: “•Official ID cards/registration: In Germany, for instance, you have to register with the local police when you move to a new place.”

    I am sorry, but as a native German I know that in Germany one does not have to register with the police but with the city registration office. That is something totally different. The police doesn’t enter at all.

    If you are a foreigner you have to register with the Ausländerbehörde which translates roughly into “office for foreigners”. There the procedure is different for citizens of the European Union and citizens from countries which don’t belong to the EU.

    But if I as a German move to e.g. France (or any other state within the EU), I am free to move there any time without, but even in France (or any other state within the EU) I also will have to be registered with the French “office for foreigners” or any other local office which is deputated to deal with this kind of things. I also will have to apply for a working permit, but as a citizen of the European Union that permit will be given automatically.

    March 2, 2012

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