Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

By Austin Sarat; Lawrence Douglas et al. | Go to book overview

Coming to the Community

ROBIN FELDMAN

A body politic, as aptly defined in the preamble of the Constitution of
Massachusetts, is a social compact by which the whole people covenants
with each citizen, and each citizen with the whole people, that all
shall be governed by certain laws for the common good. This does
not confer power upon the whole people to control rights which are
purely and exclusively private, but it does authorize the establishment
of laws requiring each citizen to so conduct himself, and so use his own
property, as not unnecessarily to injure another. This is the very essence
of government.1

The concept of public and private spheres, at its core, concerns the relationship between the sovereign and the individual. The metaphoric imagery envisions a space that the individual inhabits in peace and in which individuals are free to order their affairs without the burden of sovereign interference. It fits comfortably with the idea that individuals, emerging from a state of nature into the community, necessarily relinquish certain rights and privileges in exchange for the advantages a community provides. Nevertheless, they retain a certain domain of control in which the sovereign may not tread. There must be some refuge of solitude and solitary control, even within the community we have joined and from which we benefit. The home, as in “the privacy of my home,” is a classic example of a physical embodiment of this loose metaphor.

As the twenty-first century unfolds, societal change and technological advancement are putting increasing pressure on the metaphor of public and private spheres. Not only is one’s home permeable in its boundaries, one’s person is permeable as well, and the boundary of where the individual ends and the community begins is far less certain.

Consider the following example, which occurred long before the advent of complex social networking sites like Twitter or Facebook. A female student in

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