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33 Seton Hall Law Review 371 (2003)


This article considers how existing literature on privacy recognizes, constructs and otherwise implicates something the Anglo-American legal tradition recognizes as 'identity'. Integral to this concern is approaching privacy as a regulative principle for constructing and managing relations between the individual and three primary spheres of engagement: society, the market, and the state. Contemporary analyses of privacy tend to concentrate of how privacy protects the individual from state tyranny or the prying eyes of social busy bodies. Much less attention has been paid, however, to privacy as a principle for demarcating a space beyond the reach of market forces. As privacy recognizes and protects the conditions necessary for proper individuation and realization of the self over time, it stands in stark opposition to the expansive forces of the modern market that is based on a globalizing premise of reducing all that comes within its grasp to a common medium of exchange.

The existing literature on privacy lays the groundwork for a consideration of how the law constructs and manages 'identity.' At the core of this process lies a concern to define and protect certain dignitary interests that are seen as critical to maintaining the integrity of the self in the face of modern social, economic, and political forces. Privacy, in short, provides principles for negotiating the legal management of personhood in a manner that facilitates the development and maintenance of a coherent individual identity essential to our liberal polity's commitment to human flourishing.

Among these principles are a commitment to maintaining the conditions necessary for proper individuation and realization of the self over time. In particular, this involves the legal recognition and protection of a sphere of personhood beyond the reach of market forces, a place where a person may choose to locate aspects of herself which may not be rendered fungible or commensurable with other objects through a market exchange. More generally, the literature also reveals the potential for recognizing privacy as a means through which society itself is constituted. As a principle of community maintenance, privacy casts the construction of the self as a relational, social process that implicates identities drawn from powerful historical and social affiliations. In this context, privacy challenges the notion of the bounded self and provides legal principles that construct identity as contingent, open, shifting across time and space. Yet privacy is also ultimately grounded in a concern to protect the basic dignity implicated in allowing a person to negotiate this complex terrain with a measure of autonomy and control over the process of developing an individuated self capable of human flourishing.

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