Interests of Personality in 1915
posted by:Catherine Thompson // 11:42 AM // August 09, 2005 // Core Concepts: language and labels
Read an article called “Interests of Personality” by Roscoe Pound, published in the 1915 edition of the Harvard Law Review. It’s philosophical and mentions privacy, so I thought I would share my summary of the article.
The legal system recognizes interests. It does not create them. Interests rise through the competition of individuals and societies. The legal system does not recognize all interests. It must choose which interests it will give legal effect.
The scope and subject matter of the law can be quite wide because, in determining which interests should be given legal effect, the following must be considered:
1. Interests the law ought to recognize
2. The principles that will determine which interests will be recognized
3. The principles that will inform decisions to limit legal interests
4. The means that the law can secure legal interests
5. The limitations to effectively securing legal interests
The first legal interests were the social interests of prevention of self-redress and prevention of private wars. General security, as a social interest, was the first to be recognized by the legal system. This interest is responsible for the beginning of law. The social sciences and legal jurists should cooperate to recast historical jurisprudence in a light that recognizes this fact.
Natural rights are interests that the law ought to recognize. When a natural right is given legal effect, it is called a legal right. The deduction of natural rights was achieved in either of three methods of critical evaluation. The first method, discarded after Kant, saw natural rights deduced “from a supposed social compact.” The second method saw natural rights deduced “from the qualities of man in the abstract.” However, ‘man in the abstract’ has never technically existed. The third method saw natural rights deduced “from some formula of right or justice.” The formula relied on was that of the nineteenth century system of fundamental individual rights. It is the starting point for many of the individual legal rights we have today.
The law does not exist primarily to recognize individual interests. Neither does the law primarily exist because of the pressure of competing interests. The law exists for social ends. Individual interests are only secured as a means to that end. The law’s overall goals include:
• making individual capacities available for the development of general happiness or the common good
• promoting the general, public, organization and order to equalize opportunity for all
Individual interests have gradually been disentangled from group interests. Now the law is disentangling social interests from individual interests.
Drawing from Kant, individual interests may be classified in three ways:
1. Interests of personality (physical and spiritual existence)
2. Domestic interests (individual life)
3. Interests of substance (economic life)
Hegel argues that all interests are personality interests because “all natural rights flow from the principle of respect for the free will of others.” This view was generally accepted in the nineteenth century.
The law has generally developed to begin compensating for the interest infringed rather than for the unlawful act.
How do you determine which interests the law ought to secure? “How shall we construct a scheme of natural rights of personality?” As mentioned already, the third method of deduction is the best starting point. A good example of this method is Spencer’s Justice. Spencer draws from Kant’s formula of right, as well as from metaphysical and historical methods, to deduce seven natural rights:
1. Physical integrity
2. Free motion
3. Use of natural media (res communes, res publicae)
5. Freedom of contract
6. Freedom of industry
7. Freedom of belief and opinion
Physical integrity, honour and reputation, and belief and opinion will be examined.
The Physical Person
This interest includes the concepts of:
• immunity from direct / indirect injury
• bodily health
• freedom from coercion
• freedom of choice
• immunity of the mind and nervous system
• preservation and furtherance of mental health
• freedom from annoyance interfering with mental comfort
Some of these interests are group interests in the prevention of private wars, the debt to be paid back to the group (the state). The individual interest of integrity of the physical person is, in addition, an interest in one’s honour. In ancient Roman and Greek laws, this was viewed as relevant to gauge the amount of vengeance that might be aroused. The social interest is ensuring peace.
The three steps to recognizing personality interests are: 1) recognition of physical harm as a wrong, 2) recognition of coercion as a wrong (free will interfered), 3) recognition of mental injuries and even “infringement of another’s sensibilities.”
The biggest hurdle is to demonstrate the harm objectively, because the individual interest in receiving redress for a subjective emotional harm must be balanced against the societal interest of preventing false claims of harm. Additionally, there are the complicating factors of individuals who may be “unduly sensitive or abnormally nervous.” Hope lies in the advancement of psychological expert evidence.
The difficulties posed in proving merely mental discomfort is greater. The law has dealt with these difficulties by 1) judging the infringement according to an objective standard (meaning that damages are gauged as if the harm occurred to a fictional person who is NOT the complainant and who, for example, is NOT unduly sensitive), and 2) the damages flowing from the harm are only awarded if some other more tangible harm has occurred (such as physical injury or trespass to property).
Therefore, one reason why personality interests are rarely recognized is because of the practical problem of proof. Another reason is that the law is too hesitant to move forward and recognize such a right. A case in point is the lack of recognition of a tort of privacy despite Warren and Brandeis’ arguments [note to non-lawyers: the tort of privacy is alive and well in the U.S. now (2005)].
Interest in honour (personality) must be separation from reputation interests that are asset interests (substance). For example, a fictional book is published using real names and life details of individuals known to the author. The named individuals may have an interest in the use of their name (substance interest of property). They also may have an interest in not having the intimate details of their lives made public (personality).
How has the law recognized the interest in honour? In the context of property, Roman law made injury to slaves by other than the slave’s owner illegal on the basis that it was an affront to the slave owner. In German law, there must be intent to injure another’s feelings.
In American defamation law, quantification of compensation injuries to asset are easily done. However, injury to honour, which can not be compensated in theory, must receive one of the only quantum available: money. Awards vary widely, in part due to the decision being entrusted to juries.
Belief and Opinion
This is a well engrained right in American law. Often, it is only seen as an individual right. As a societal interest, it serves political efficiency and social progress. Individuals who are restrained in the expression of belief and opinion can not be said to lead a “full moral and social life.” A limit to the right is expression of beliefs that may overthrow the state or vital institutions. This social interest limit is sometimes overemphasized. The threshold is when those beliefs are manifested externally.
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