PRIVACY'S PAST: THE ANCIENT CONCEPT AND ITS IMPLICATIONS FOR THE CURRENT LAW OF PRIVACY.

• Author: Komamura, Keigo

ABSTRACT

Privacy is a mysterious concept. The more apparent its significance in the real world becomes, the more obscure the core and the limitations of the concept become. In the digital age, it is urgent that the legal framework to protect privacy should be enhanced more than ever before. At the same time, the right-based model of privacy which has long been dominant in theory and practice is now challenged by many privacy law experts who propose a shift from the right-based model to the trust-based model, a transition from the consent-based regime to the expectation-based regime, or from the user's right to control to the fiduciary duties of professionals. This Article addresses the current debate and contributes to the ongoing search for a new concept of privacy by looking back at privacy's past. As a legalformula, privacy was introduced at the end of the nineteenth century. However, we can trace its cultural origin to ancient Greek thought and the idea of a distinction between the public and the private realms that was inherent in the design and political structure of the polis. Relying on Hannah Arendt's works, this Article draws some critical implications from the ancient idea and its modern turn, focusing on both the privative traits and the nonprivative traits of privacy. The argument is that the ancient Greek concept of privacy originally suggests a state of being deprived of relationships with others, and the implication is that privacy has been a relational concept since the beginnings of western political thought. This Article maintains that privacy law should seek its foundations in the nature of privacy as a component of the human condition, the existential fact that we all live with ambivalence between whether to disclose or conceal some aspect of our selves to others. This Article proposes that we shift away from thinking of privacy in relation to the demand to be "left alone " and think rather about the framing of regulative ideals for relation-building.

TABLE OF CONTENTS INTRODUCTION I. THE ANCIENT CONCEPT OF PRIVACY AND ITS MODERN TURN A. The Privative Trait of Privacy B. The Non-Privative Trait of Privacy 1. The Rise of Modern Society 2. Discovery of Intimacy 3. The Non-Privative Traits of Privacy: Intimacy, Urgency, and Depth II. AMBIVALENCE OF DISCLOSURE AND CONCEALMENT A. From Binary Concept to Ambivalent Concept 1. The 'Disclosure-for-Greatness/Concealment-for-Sanctity' Solution is Not the Answer 2. Empirical and Existential Basis of the Ambivalence of Disclosure and Concealment B. A Philosophical Explanation on the Ambivalence of Privacy 1. Another Privative Trait of Privacy: Privation of Others 2. Another Non-Privative Trait of Privacy: The Conception of Good III. IMPLICATIONS FOR THE CURRENT LAW OF PRIVACY A. Space and Architecture: Privacy as the Four Walls B. Sanctity of Life and Death C. Relationship with Others D. For the Current Development of Privacy-as-Trust Scholarship CONCLUSION INTRODUCTION

It has long been the common understanding that the legal concept of privacy developed as a contemporary innovation. It is common knowledge that Warren & Brandeis's famous 1890 article (1) impressively introduced the notion of a right to privacy to the legal world and that this concept became one of the most utilized measures in tort law.

This is true. As a constitutional law scholar, however, I would like to consider the fact that the concept equivalent to privacy has roots in the modern tradition of liberal thought. (2) A basic premise of modern political thought and liberal constitutionalism is that the political community needed to be divided into two spheres, the public and the private. Roughly speaking, the liberal tradition holds that political powers should be in charge of the public sphere, while individual freedom and autonomy are to be preserved in the private domain. (3) The legal tool that draws boundaries between the public and the private is articulated in the form of fundamental rights, and among these rights is the concept of privacy. In theory, this concept plays a major role in negotiating the lines between public duties and private freedoms. In a sense, an ideal of privacy was already incorporated into modern constitutional projects from their inception.

But we can trace the history of a concept of privacy back much further. The idea of public/private distinction and a concept like privacy already existed in Greek thought and actually functioned in the life of the Polis in ancient Greece. The Greek concept of privacy has often been seen as socially detrimental and criticized as a form of retreat from society. (4) Daniel L. Solove articulated the Greek understanding of privacy as follows: "[t]he public sphere was the truly important realm of existence; the private sphere was valuable solely to the extent that it nourished people for public participation." (5) Elsewhere in the same work, Solove also suggests that the protection of a realm of solitude in the private sphere is "built into society's structure for a social purpose." (6) To verify this view, Solove cites the famous political philosopher Hanna Arendt's work on Greek thought, asserting that "the private sphere was essential to shaping the dimensions and quality of life in the public sphere." (7) The passage he cites from Arendt's work reads:

A life spent entirely in public, in the presence of others, becomes, as we would say, shallow. While it retains its visibility, it loses the quality of rising into sight from some darker ground which must remain hidden if it is not to lose its depth in a very real, non-subjective sense. (8) By mapping the metaphor of the shallow/deep dichotomy onto that of the public/private, Arendt suggests that a life in the private sphere originally held its own intrinsic value besides its social role of encouraging vigorous participation in public life. What then, according to Arendt, is the nature of the value of the private sphere?

In what follows, I pursue this question by revisiting Arendt's presentation of the public/private dichotomy in Greek thought as laid out in her representative work, The Human Condition. My purpose is to expand the horizons of legal discourse about the public/private distinction by reconsidering the relevance of Arendt's understanding of the private as a source of intrinsic value in Greek social life. Part I introduces the contrast between the privative trait of privacy and the non-privative trait of privacy and describes the different versions of these traits which were rediscovered in the modern age. Part II clarifies the differences and similarities between the Greek trait of privacy and the rediscovered traits in the modern age. I then move beyond historical inquiry by considering the universal implications of concealment and disclosure for human life as baseline factors that underlie both ancient and modern concepts of privacy.

Finally, I suggest some preliminary implications that arise when applying Arendt's reading of the Greek concepts of privacy to privacy law scholarship, in particular to the current proposals of "the privacy-as- trust school." In my interpretation, since its inception as a fundamental category in political thought, the concept of privacy has been a relational one, not a mere justification for the solitude of the individual. I believe that the relational aspect of privacy is central to any form of the concept in both contemporary states and even in ancient Greek city states, and it also applies equally in the digital age and pre-digital age. It is our fate to lead our lives in complicated webs of human relationships, and legal forms like contract and consensus-based models cannot help but narrow the scope of these private relationships. Legal measures cannot regulate or formalize every context of daily human relationships. It is necessary to consider this underlying reality to uncover the original meaning and value that privacy has in our daily life and practice. From this standpoint, the significance of the boundary of the public and the private may become clear. By returning to Arendt's insightful reading of the ancient Greek concept of privacy, we may be able to discover that the value of privacy is connected to that of trust--a basic requirement for maintaining stable intimate relationships. This observation suggests the connection between ancient concepts of privacy and modern traditions of legal thinking. I conclude by returning to Arendt's work in order to propose a further step to protect privacy in the future.

1. THE ANCIENT CONCEPT OF PRIVACY AND ITS MODERN TURN

   1. The Privative Trait of Privacy

      In the ancient Greek thought, political community (polis) is not just different from but stands in direct opposition to the natural community whose center is the home and the family (oikos). (9) According to Arendt's analysis, "[t]he distinction between a private and a public sphere of life corresponds to the household and the political realms, which have existed as distinct, separate entities at least since the rise of the ancient city-state." (10) The ancient concept of public/private distinction was based upon this sharp contrast between "the household and the political realms." (11) As Arendt says, the public and the private existed as "distinct, separate entities," (12) the distinction was so decisive and thorough that there seemed to be no interactive space in this formula. At least theoretically, however, this decisive arrangement was thought to be an essential prerequisite for the establishment of the polis.

      As for the household as the center in the private realm, its driving force was life itself, namely, individual maintenance and survival of the species. In ancient oikos, "[t]hat individual maintenance should be the task of the man and species survival the task of the woman was obvious[...]" (13) So the household was the place to fulfill "the necessity of life" and the necessity ruled over all members...