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Law, Morality and the Private Domain

Law, Morality and the Private Domain

Raymond Wacks
Copyright Date: 2000
Pages: 356
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  • Book Info
    Law, Morality and the Private Domain
    Book Description:

    Moral problems, argues Professor Raymond Wacks, pervade the legal system, and he shows how the judicial function, the sources of legitimacy, and the protection of rights have an inescapable ethical dimension. The second part of the book focuses on the private domain and the legal concept of privacy. The extent to which the law ought to preserve a distinctly private realm is a pressing concern in our surveillance society in which personal information is increasingly collected, transferred, and stored. This controversial and difficult subject is one into which Professor Wacks, a leading expert in this field, is uniquely qualified to offer important insights.

    eISBN: 978-988-220-197-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    Raymond Wacks
  4. Introduction
    (pp. 1-22)

    MORAL QUESTIONS INVADE the law at every turn. To maintain a rigid separation between morality and the law — even in pursuit of analytical clarity — is, at best, an improbable enterprise. The legal positivist’s quest for a value-free account of law is countered by the naturalist more plausible claim that this account neglects the very essence of law — its morality — that ‘the act of positing law … can and should be guided by “moral” principles and rules; that those moral norms are a matter of objective reasonableness, not of whim, convention, or mere “decision”’.¹ Yet, to compound...

  5. Part One: Morality and Rights

    • 1 What Is the Judicial Function?
      (pp. 25-46)

      JUDGES DO THINGS. Precisely what they do is, however, controversial. Yet the centrifugal force of the judicial function drives the common law both in theory and in practice. It is therefore little more than a truism that the future of the common law in Hong Kong rests largely on how the courts behave after the resumption of Chinese sovereignty on 1 July 1997. But beneath this simple generality reside a number of perplexing questions concerning both the nature of what judges do and what it is they may be permitted to do after 1997.

      Positivism has a distinguished lineage in...

    • 2 Can a Judge Be Just in an Unjust Legal System?
      (pp. 47-90)

      THE JUDGE IS the quintessential legal institution. In his robed and exalted independence he is the very apotheosis of fairness. The ‘social service’ that he renders to the community is, in Lord Devlin’s words, ‘the removal of a sense of injustice’.¹ The impartiality that informs his judgments in the settlement of disputes is nothing short of an article of faith in a free and just society.

      While this attractive and abiding conception of the judicial function has long been exposed as, at best, a myth, no amount of cynicism can easily dislodge the image of the judge as keeper of...

    • 3 Are Judges Morally Accountable?
      (pp. 91-112)

      MY PURPOSE IN this essay is to consider the question of the moral responsibility of the judge in an unjust society. What is the ‘moral’ judge to do who cannot reconcile his perception of justice with the law? Although this is not the first time I have attempted to consider this perplexing question,² my previous concern and method were different. This essay argues from an explicitly ethical standpoint. It seeks to establish the grounds upon which it may be plausible to sustain the view that judges, and perhaps other public officials, are morally responsible for their acts or omissions, and...

    • 4 Is Legal Validity Morally Neutral?
      (pp. 113-152)

      AT MIDNIGHT ON 30 June 1997 the People’s Republic of China (PRC) will resume sovereignty over the British colony of Hong Kong.³ From that moment Hong Kong will become a Special Administrative Region (SAR) under the direct power of the Central People’s Government with the promise of a ‘high degree of autonomy’.⁴ The Hong Kong SAR will be vested with executive, legislative and judicial powers — except in respect of foreign affairs and defence. On 4 April 1990 the National People’s Congress adopted a Basic Law for the Hong Kong SAR pursuant to Article 31 of the Constitution of the...

    • 5 Do Animals Have Moral Rights?
      (pp. 153-178)

      THIS ESSAY CONSIDERS one of the many uses to which we put animals. Some 140 million experiments involving live animals are performed annually.² Protests against these and other practices involving animals (including the fur trade, battery farming, hunting, trapping, circuses, zoos, and rodeos) have, in recent years, increased significantly.³ Though many experiments inflict pain and distress on animals, it is worth noting that some do not. Nor will all be ‘sacrificed’, the researcher’s euphemism for killing.⁴ Moreover, it is hard to deny the fact that eating animals ‘is responsible for a vastly greater quantity of death and suffering than experimentation’.⁵...

    • 6 Can ʹHuman Rightsʹ Survive?
      (pp. 179-210)

      THE CONCEPT OF human rights is under siege. How is it that so powerful an idea, which achieved a certain apotheosis in the post-war era, seems embattled and imperilled at the end of this turbulent century?

      The notion has recently been exalted by the Argentinian jurist, Carlos Nino, as ‘one of the greatest inventions of our civilisation (that) can be compared in its impact on human social life to the development of modern technological resources and their application to medicine, communication, and transportation’.¹ And similar encomiums abound.

      The recognition in the eighteenth century of the apparently simple idea of human...

  6. Part Two: The Private Domain

    • 7 What Is ʹPrivacyʹ?
      (pp. 213-234)

      NEARLY A CENTURY after Warren and Brandeis¹ identified ‘privacy’ as a common law right to which individuals could lay claim, the concept remains problematic. But though the transatlantic debate has rarefied into controversies surrounding the meaning of ‘privacy’ and the content of the ‘right to privacy’, the United Kingdom, despite the modest proposals for legislation made by the Younger Committee in 1972,² remains among the few jurisdictions in which ‘privacy’ receives no explicit legal recognition.³

      The judicial disinclination to acknowledge any immanent ‘right to privacy’ in our law⁴ (such as occurred most spectacularly in the United States) coupled with the...

    • 8 Should the Concept of Privacy Be Abandoned?
      (pp. 235-248)

      THE DISCOURSE ON ‘privacy’ is anything but coherent, though it is perhaps tendentious for one who has long regarded this development with unease so to characterize it.¹ Yet while it is undeniable that, at least in legal terms, ‘privacy’ has ‘come a long way’² since its original formulation by Warren and Brandeis³ as a right against embarrassing publicity, some may want to repudiate my position that the voluminous literature on the subject has failed to produce a lucid or consistent meaning of a concept which, particularly in the United States, continues to provide a forum for contesting, inter alia, the...

    • 9 Can the Law Protect the Private Domain?
      (pp. 249-268)

      THE IMPACT OF the Warren and Brandeis essay¹ upon American common law and, to a certain extent, upon constitutional law² does not require elaborate restatement. Their thesis — that the common law implicitly recognized the right to privacy — ‘enjoys the unique distinction of having initiated and theoretically outlined a new field of jurisprudence’.³ Drawing upon English cases⁴ of, in particular, breach of confidence, property, copyright and defamation, they argued that these cases were merely instances and applications of a general right to privacy. The common law, they claimed (albeit under different forms), protected an individual whose privacy was invaded...

    • 10 Are Privacy and Free Speech Possible in Cyberspace?
      (pp. 269-290)

      REPORTS OF THE fragility of ‘privacy’ have been sounded for at least a century. Most recently, advances in computer technology are decried as the nemesis of whatever vestiges of ‘privacy’ still survive. At the same time, the ‘information superhighway’ is hailed as a Utopia waiting to be born. When clichés contend, it is unwise to expect sound resolutions to the problems they embody, but between these two exaggerated claims, something resembling the truth probably resides. In respect of the future of ‘privacy’ at least, there can be little doubt that the questions are changing before our eyes. And if, in...

    • 11 Can Privacy Co-exist with a Free Press?
      (pp. 291-318)

      FREEDOM OF THE press is inescapably bound up with the general question of free speech, a subject of vast and complex proportions the surface of which this essay merely scratches.¹ Broadly speaking, justifications for free speech are either consequentialist or rights-based. The former normally draw on the arguments of Milton and Mill (from truth or democracy), while the latter conceive of speech as an integral part of an individual’s right to self-fulfilment. I consider each kind of argument below.

      When it comes to defending free speech these arguments tend invariably to be amalgamated, and even confused. So, for example, Thomas...

    • 12 Is the Private Domain Doomed?
      (pp. 319-338)

      THE ENIGMA LIVES ON. Twenty years ago, I lamented the confusion that was generated by an expansive notion of ‘privacy’. I urged that if the concept were to be rescued from the ruins, it should be confined to questions relating to personal information.¹ This argument, which I have since continued vainly to pursue has, in a sense, come full circle. The principal problems of privacy are now, and look likely to remain, those of what has now been called ‘informational privacy’. No one in 1980 foresaw the birth of the Internet and its unsettling onslaught on the security of some...

  7. Sources
    (pp. 339-342)
  8. Index
    (pp. 343-348)