Privacy and Knowledge: Fundamental Fields of Study for Twenty-first-Century Democracies

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Citizenship plays an essential part in a functioning modern democratic polity. The consolidation of mass democracy and the nation state, mass consumption and capitalism, as well as the development of rational knowledge are the main elements that built this modern polity. Part of the nation state’s function has been to develop a welfare state with the aim to make its citizens thrive. After all, to make citizens thrive was the old Aristotelian ideal of the polis, often translated as ‘city-state’, as the sole space for human beings, political animals, to achieve their potential. In order to build this social and political system, public institutions evolved into complex bureaucracies, which gathered more and more information about its citizens. Sociologists have referred to this as ‘information society’ or ‘knowledge society’.

The early modern period gave Europe the foundations of its modern vocabulary. Theologians, and legal and political thinkers established the basis for our modern concepts such as citizen, the state, law, freedom, the nation. The construction of the nation-state was the project of the nineteenth century, while the construction of the welfare state was the project of the twentieth century. Both projects have created a bureaucracy in charge of gathering information about citizens. This knowledge has also served as identity formation, political identity, which resulted in tremendous crises (world wars based on nationalism, and the use of national registers to identify specific groups of population). The twenty-first-century model is still under formation, but seems to be basing itself on the digital revolution; a cyber-Leviathan struggling to cap a multitude of fluid political identities.

The good functioning of a modern democratic polity has become increasingly complex in our ‘knowledge society’. New actors have challenged nation-states. Multiple actors (transnational groups, the internet, foreign countries, large multinational or global companies, NGOs, etc.) impact on the functioning of democratic nation-states. These alternative actors have sometimes surpassed governments and public authorities in gathering knowledge about their citizens and in using it. The USA engaged in mass surveillance post 9/11, sometimes with the complicity of local governments.[1] Private corporations have established an economic system called ‘surveillance capitalism’.[2] China has built ‘smart cities’ where citizens cannot cross the street without the party knowing it.[3]

That ‘knowledge is power’ is a well-known aphorism, commonly traced to Francis Bacon (1561—1626), from his 1597 Meditationes Sacrae: ‘ipsa scientia potestas est’ (‘knowledge itself is power’). Thomas Hobbes (1588—1679), who knew him, also wrote in his 1668 Latin edition of Leviathan ‘Scientia potentia est’, adding: ‘sed parva’; or in the original 1651 version ‘The Sciences, are small Powers…’[4] Hobbes’s point is that, since science cannot be contained in one person, it is a small power. Knowledge of everything, for Hobbes on the other hand, is real power, but only pertains to nature. What would Hobbes say today when governments and corporations have access to an unprecedented amount of personal information about individuals and have the ability to process and analyse all the data collected? ‘Scientia potentia est sed parva’?

Castells theorized the ‘information age’ as a competition between the self and networks driven by technology.[5] For Castells, social groups construct their identity, which shape the institutions of society. Who controls the means of constructing collective identities determines the content of these identities. Now, since the technological tools available determine social change, who controls this technology has tremendous power over society.

Today, the topic of privacy is therefore of paramount importance. Technology and economy have merged into a system of collection of data from individuals as a way of making a profit. This deep knowledge of individuals is not only selling new objects of consumption, but constituting political identities, disrupting elections, impacting freedom of thought by altering one’s access to unbiased information.[6] Have algorithms and artificial intelligence used by social media companies and governments to mine big data reached the status of all-knowing God? The individual still has free will against this powerful knowledge by protecting her privacy. A recent book argues simply that ‘privacy is power’.[7] If privacy is power and knowledge is power, research on the dynamic between knowledge and privacy is fundamental for democracy. Historical research should inscribe itself within this grand narrative of modernity as a construction of identities between the self and networks by powerful technologies. Or of postmodern deconstruction into small narratives, as Lyotard has it (more on this in a future post).[8]

Privacy studies as a field of research is still in its infancy despite a handbook.[9] What is missing is a richer historical perspective. The Centre for Privacy Studies at the University of Copenhagen is aiming at developing an interdisciplinary outlook on privacy and a method for privacy studies as a field. The history of privacy has been a developing topic of research for the past three decades. But it is more recently that the idea of privacy and the private/public nexus as threshold of contested power as a relevant tool for studying the past has emerged.[10] Privacy studies contribute to at the evolution of various understandings of privacy across time and space, and how they have been justified or limited in political ideologies.

The field of the history of knowledge can ironically be traced to Bacon again with his 1605 The Advancement of Learning, inspiring the taxonomy of knowledge in the French Encyclopédie.[11] It has had different names and objects of study over time.[12] The field is developing rapidly with a new Journal of the History of Knowledge created in 2020,[13] the Lund Centre for the History of Knowledge,[14] following the work of Peter Burke since the 1990s.[15] Knowledge studies should examine how political knowledge of citizens was created, limited, and disseminated throughout modernity.

Knowledge has always been considered partial and limited. It could be that it is limited to an elite or that it is deemed dangerous and concealed, or simply that it is not possible to gather enough information. Echoing Bacon, Foucault has established a fruitful conceptual tool with the nexus power/knowledge that mutually create and influence one another: ‘the exercise of power perpetually creates knowledge and conversely, knowledge constantly induces effects of power’.[16] He had previously studied Bentham’s panopticon for prisons, a device bereaving prisoners of privacy and enabling the collection of information on their private behaviours at will and at random so that they discipline themselves.[17] In this sense, there has also been privacy of political knowledge of citizens. What justifies on the one hand the limitations to citizens’ privacy to gather political knowledge, and what justifies the limitation of citizens’ knowledge to this?

[1] Elliot D. Cohen, Mass Surveillance and State Control: The Total Information Awareness Project (New York, NY: Palgrave Macmillan, 2010); Timothy H. Edgar, Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA (Washington, D.C: Brookings Institution Press, 2017).

[2] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (New York, NY: Public Affairs, 2019).

[3] Kai Strittmatter, We Have Been Harmonised: Life in China’s Surveillance State (La Vergne: Old Street Publishing, 2019).

[4] Thomas Hobbes, Leviathan, ed. Richard Tuck, Revised student edition, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1996), 63.

[5] Manuel Castells, The Information Age, Volumes 1-3: Economy, Society and Culture (Malden (Mass.); Oxford: Wiley-Blackwell, 1999).

[6] Ivan Manokha, ‘Surveillance: The DNA of Platform Capital—The Case of Cambridge Analytica Put into Perspective’, Theory & Event 21, no. 4 (2018): 891–913.

[7] Carissa Véliz, Privacy Is Power: Why and How You Should Take Back Control of Your Data (London: Bantam Press, 2020).

[8] Jean-François Lyotard, La condition postmoderne:  rapport sur le savoir, Collection critique. (Paris: Editions de Minuit, 1979).

[9] Bart van Der Sloot and Aviva de Groot, eds., The Handbook of Privacy Studies: An Interdisciplinary Introduction. (Amsterdam: Amsterdam University Press, 2018).

[10] Sarah E. Igo, The Known Citizen: A History of Privacy in Modern America (Cambridge, Massachusetts: Harvard University Press, 2018).

[11] Francis Bacon, The Two Bookes of the Proficience and Advancement of Learning Divine and Humane (London: Henrie Tomes, 1605).

[12] Peter Burke, What Is the History of Knowledge?, What Is History? (Oxford: Polity Press, 2015), chap. 1.

[13] https://journalhistoryknowledge.org.

[14] Johan Östling, David Larsson Heidenblad, and Anna Nilsson Hammar, ‘Developing the History of Knowledge’, in Forms of Knowledge: Developing the History of Knowledge (Lund: Nordic Academic Press, 2020), 9–26.

[15] Burke, What Is the History of Knowledge?

[16] Michel Foucault, Power/Knowledge:  Selected Interviews and Other Writings, 1972-1977 / (New York, N.Y: Pantheon Books, 1980), 52.

[17] Michel Foucault, Surveiller et Punir. Naissance de La Prison (Paris: Gallimard, 1975).

Gendering the Renaissance Commonwealth by Anna Becker

Cambridge University Press

On 23 September, the Centre for Privacy Studies welcomed back former colleague Anna Becker, now Professor MSO in the history of ideas at the University of Århus, for a book launch. Anna presented her newly published book Gendering the Renaissance Commonwealth, published by Cambridge University Press in the prestigious series ’Ideas in Context’. This ‘Cambridge School’ historical analysis of gender in the language and the concepts of Renaissance political thought presents a thought-provoking reinterpretation of looking at the period.

 

This fantastic book kills two birds with one stone. Firstly, it presents a historical analysis of the gendered languages of Renaissance political thought. Doing so, and secondly, it is challenging the dominant narrative on Renaissance political thought.

The dominant narrative of Renaissance political thought is that this period marked the beginning of a sharp separation between a private and a public sphere. The public is the political and reserved to male citizens. The private is the realm of the domestic and reserved to female non-citizens. Becker attributes this narrative to Hannah Arendt’s influential reading of Greek thought in general and Aristotle in particular. The view for Aristotle is that man is a political animal (zōon politikon), who can only reach his true potential in the, the public sphere, the polis, as a citizen. In opposition, the private sphere of the household is simply for social companionship, not unlike any other animal. Becker urges us to free ourselves from this reading, which has influenced many thinkers, first of all Habermas in The Structural Transformation of the Public Sphere, and Pocock in The Machiavellian Moment. We must rethink, writes Becker, this simplified division between the public-political-male realm and the private-apolitical-female realm.

Indeed, Renaissance political thought revolved around interpretations of Aristotle’s division between the household and the city. Philosophy, for Aristotle, was divided into practical and natural philosophy. Practical philosophy was divided into three disciplines: ethics, economics, and politics. Moral philosophy in universities were taught according to this distinction. Ethics concerned the self, economics the household, and politics the city. Becker shows in her book that Renaissance thinkers pondered all three disciplines together. In this sense, the household and even the self, were political matters because the well-being of the res publica depended on good mores of individuals and a harmonious family life, res familiaris.

Becker looks more specifically at Machiavelli’s thought in one of the chapters and Jean Bodin’s thought in three other ones. It is not possible to present all the arguments and points that Becker makes, but I shall here select important ones for her overall thesis.

First, Becker explains Aristotle’s divide of philosophy upon which all Renaissance thinkers commented. Italian thinkers, such as Leonardo Bruni (c. 1370 – 1444), Donato Acciaioli (1428– 1478), and Bernardo Segni, were interested in the relationship between the individual, the family, and the state in their commentaries of Aristotle’s Politics and Ethics. These three communities of human life constituted three objects of the practical philosophy called moral philosophy, which sought to regulate all human life. Ethics was concerned with individual mores, Economics with family matters, and Politics with public matters. All three sub-disciplines were related with one another, so there was no sharp distinction between a “private” and a “public” sphere. The debates among Renaissance commentators of Aristotle focused on how to balance the three for a harmonious whole.

When it comes to Machiavelli, he pondered on “private” issues such as family and friendship, using the same vocabulary as his civic humanist contemporaries. However, Machiavelli argued against the accepted narratives. It is not friendship in the citizen body that makes a city great, but the lack of it. Discord, and not concord, makes better laws because conflict leads to greater debates. And the law is needed for good civil life (vivere civile). Friendship, on the other hand, leads to corruption and cronyism. This is the lesson from Florentine history, in which powerful families ruled the city almost to its ruin. By the same token, education should not be left to families because anti-republican families educate their children with these values.

Regarding Bodin (1529/30–1596), one of the main arguments turns to the gendering part of our political vocabulary; what Becker calls the “invention of a tradition.” This new tradition is the husband’s power over his wife. Since marriage and the family are the first stones of the res publica, the commonwealth, and since the trope is that a state is a big family, or a family a small state, the gendering of the vocabulary is here crucial. The private marriage of husband and wife is about power (imperium): the power of the pater familias (family father) over the submissive wife. This construction is particular to Bodin and contradicts Roman law. In the body of Roman law known as Corpus iuris civilis, Roman wives were not subjected to the power of their husband. The seventeenth century was then heavily influenced by this metaphor of the ruler as a father. The divine-right theory was a direct consequence of this idea and the tradition of paternal political power.

We are left hanging in the last chapter, which only a few paintbrushes of what a study of German political thought during the same period would be like. The reader could ask for more on Martin Luther, and how Reformation thinkers interpreted Aristotle’s practical philosophy, but Becker paved the way for this reader to accomplish that on her own using the same method of analysis.

If you want to know more about the book, stay tuned for a podcast episode with Anna Becker. In the meanwhile check our amazing previous episodes!

Private Right and Common Good

On Wednesday, June 10, 2020, Professor James Gordley gave an outstanding (virtual) lecture at our Centre for Privacy Studies.

James Gordley is an expert in comparative and contract law. He studied in Chicago and Harvard, and was professor at the University of California (Berkeley), before coming to Tulane University (New Orleans).  In 1991, he published the Philosophical Origins of Modern Contract Doctrine with Oxford University Press. This work reshaped the way of thinking about the history of private law. Before Gordley, only a few historians had investigated the impact of the theology of Thomas Aquinas and the late scholastics on the field of contract law.

A few years later, in 2006, James Gordley authored Foundations of Private Law. Property, Tort, Contract, Unjust Enrichment. In this book, he expanded the original thesis of the crucial importance of the Aristotelian Thomistic tradition for the development of modern private law. In 2013 he published The Jurists: A Critical History. Here, he explored the history of Western legal thought from the Romans till nowadays.

Among his innumerable articles, I would like to remember Law and Religion: An Imaginary Conversation with a Medieval Jurist published in California Law Review Vol. 75, 169-183. Gordley tried to imagine a conversation between a modern student of law and a fourteenth-century law professor in Bologna. This article, I believe, is very thought-provoking. I quote here a few passages from the introduction:

James Gordley’s lecture was about private right, common good, and how these two fit together. I will give here a brief account of the lecture with no aim of completeness. Private right and common good were in harmony in the writings of the late scholastics. Modern liberalism disrupted this harmony. Aquinas used the word ius to mean what one was allowed to do. Aquinas and other medieval theologians and jurists demanded restitutio of the stolen thing as a requirement for obtaining forgiveness. Salvation was only granted through confession of sins. In order to be absolved in the confessional, the Christians had to return things they had stolen. Restitutio also concerned honour, reputation etc. Therefore, commenting upon Aquinas Francisco de Vitoria proposed to use the term ius, ius (right) as what one is allowed to do.

Nineteenth-century scholars focused on the will of the right owner: the owner can do what he wants from his property. Contemporary jurists criticized this theory because it does not explain the limits established by the law. The law can limit contracts and property. A contract is not always enforced according to the will of the parties. On the other hand, the late scholastics argued that property is not an absolute right. The limits of the rights are delimited by justice. For example, a contract is limited by the equality of commutative justice. The innovation of nineteenth jurists, Gordley concluded, was not to introduce the concept of will, but it was to leave out the consideration of justice.

With regard to public good, Gordley affirmed that the late scholastics defined it according to three common features. Human beings live in a community because the human being is a social animal. The choice to be in the community is voluntary, but it is the only choice man can do. A community must also choose his form of government: monarchy, aristocracy, or democracy. Once this choice has been made, people must stick to it. There is a right to resist against the tyrants when they no longer rule for the common interest but for their private interest.

Finally, Professor Gordley delineated the relationship between private right and common good.  Thomas Aquinas also used ius to mean the virtue of justice and not not the objective right.  Following Aristotle, he distinguished between general justice and particular justice. Justice is to preserve happiness. Particular justice is either distributive or commutative. Thus, ius both meant general justice and the right that belongs to a particular person.

Aristotle described general justice as part of every virtue. Justice is a complete virtue. Aquinas explained that the good of any virtue is the common good towards general justice. All acts of virtue pertain to general justice insofar as they direct man to the common good. Thus, the preservation of a private right is directed towards the common good. Every virtue contributed to the happiness of the state. The good of any virtue can be referred to the common good.

This was a very short sketch. Professor Gorgley’s lecture was much more complex and fascinating. We were really honoured to have him at our centre. For those of you who are interested, the lecture will be published in our podcast.