Genetic Privacy: A Challenge to Medico-Legal Norms

By Graeme Laurie | Go to book overview

2
Privacy: anti-social concept or fundamental right?

The public/private distinction

The distinction between public and private spheres of life has increased in importance in Western culture during the last few centuries along with the growing emphasis on individualism.1 Its importance was concretised in American legal and political discourse in the nineteenth century. As Horowitz has noted, 'One of the central goals of nineteenth centurylegal thought was to create a clear separation between constitutional, criminal, and regulatorylaw – public law – and the law of private transactions – torts, contracts, property, and commercial law.'2

At much the same time in England, John Stuart Mill produced On Liberty, published in 1859, in which he defended the freedoms of the individual against social and political control: 'There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.'3

As this suggests, the public/private distinction ensures that the legitimacyof interference with individual action is continuallyunder scrutiny. This implies that individuals and individual action are of considerable importance in at least one sphere – the private sphere – and further, that it is a good thing that the boundarybetween the two spheres is maintained. Two points arise from this. First, it is not to be inferred that

____________________
1
For a collection of views on the public/private distinction, see 'Symposium on the Public/Private Distinction' (1982) 130 University of Pennsylvania Law Review 1289.
2
See M. J. Horowitz, 'The Historyof the Public/Private Distinction' (1982) 130 U niversity of Pennsylvania Law Review 1423, 1424. Horowitz also links the development of the distinction with the rise of the sovereign nation state in the sixteenth and seventeenth centuries and the emergence of 'natural rights' theories in the seventeenth century: ibid., 1423. This is also noted in R. Wacks, Personal Information, Privacy and the Law (Oxford, Clarendon Press, 1989), p. 8.
3
J. S. Mill, On Liberty (Penguin Books, London, 1974 [1859]), p. 63.

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Genetic Privacy: A Challenge to Medico-Legal Norms
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Preface ix
  • Table of Cases xii
  • Table of Legislation xviii
  • International Instruments xxi
  • Miscellaneous Documents xxiii
  • 1 - Health Care, Patient Rights and Privacy 1
  • 2 - Privacy: Anti-Social Concept or Fundamental Right? 28
  • 3 - Human Genetics and Genetic Privacy 86
  • 4 - Autonomy, Confidentiality and Privacy 182
  • 5 - Privacyand the Public Interest 245
  • 6 - Privacy and Property? 299
  • Index 329
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