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Privacy has always been a critical element of liberal capitalism. Rather than limit the abuses of the state, privacy allows for and supports the consolidation of sovereignty over supposedly autonomous individuals and subjects them to the power of capitalMark Neocleous ‘2 Lecturer in Politics at Brunel University “Privacy, secrecy, idiocy” Social Research 69.1 (Spring 2002)

As I hinted earlier, the cause of this transformation was the rise of liberalism, and we can now spell out the implications of this point.

As liberalism developed it came to be the main political defense of privacy. John Stuart Mill contrasts ancient commonwealths that sought "the regulation of every part of private conduct by public authority" with the "modern world [in which] political communities...prevented so great an interference by law in the details of private life" (Mill, 1972 [1859]: 76). Similarly, Alexis de Tocqueville claims that "to taste the pleasures of private life" one must follow the Americans and beware the political encroachments in these pleasures, for "as the extent of political society expands, one must expect the sphere of private life

to contract" (Tocqueville, 1968 [1840]: 782-3). Thus privacy constitutes what is perhaps the central idea of liberalism, almost a sacred tenet of liberal ideology (Lukes, 1973: 62; Berlin, 1969: 129). It is easy to forget how significant a historical and ideological transformation was effected by liberalism in this defense of privacy. Historically, privacy had been a negative state-the state of privation. For the Greeks, those experiencing privacy were being deprived, and what they were being deprived of was participation in the polis. Hannah Arendt makes the point: To live an entirely private life means above all to be deprived of things essential to a truly human life: to be deprived of the reality that comes from being seen and heard by others, to be deprived of an "objective" relationship with them that comes from being related to and separated from them through the intermediary of a common world of things, to be deprived of the possibility of achieving something more permanent than life itself.

The privation of privacy lies in the absence of others (1998 [1958]: 58). To Arendt's point we should add that it is just as easy to forget how big a political demand is made on us when we accept the idea of privacy as a central organizing feature of our politics. In most of the literature on privacy the idea is related to the rise of individualism.

There is a well-known argument that individualism as a theory and the idea of the person as an individual have their origins in the rise of capitalism (Abercrombie, Hill, and Turner, 1986: 36). Putting privacy in this context reveals an important if rather obvious point: that liberalism's defense of privacy historically accompanied its defense of capital. In other words, in helping liberalism shape its defense of the individual, "privacy" was ideologically functional to the consolidation of the power of capital. No better evidence for this point can be found than Adam Smith's Wealth of Nations, in which "private" gets

used more than "wealth."4 "Private," after all, is a word most frequently conjoined with "property." And it is worth reminding ourselves that when conjoined with "property," "private" by no means necessarily refers to a human individual, but also refers to exclusionary property rights claimed by corporate bodies that (or rather, "who") can then appear as bona fide

persons in law. This tells us that as much as "privacy" may be used to defend individual human rights, it can just as easily be used to defend the corporate rights of capital : the right, for example, to extract a surplus from wage labor or to put the interests of shareholders above the safety of workers or consumers. And these rights are created and defended by the state (for a fuller account see Neocleous, 1996:

140-52). As a principle around which we might organize resistance to forms of oppression, it must be noted that privacy can be used as much by certain forms of power as against them; I am referring, of course, to the power of capital.

Moreover, as an essentially liberal concept, privacy does little more than demand certain individual liberties. In and of itself this has had some success, of course, and it would be churlish to claim otherwise. But the small-scale victories achieved by marching under the banner of privacy do little to mitigate against the large-scale defeat I have been discussing here, a defeat that continues to be consolidated in the minutiae of legislative and

executive action. Thus some 200 years after first being articulated as a human right, the insistence on

privacy has not stopped British intelligence elites from searching for ways to log and store for seven years every phone call made in Britain; nor has it stopped the British state from building a 25-million-pound email surveillance centre at MI5; nor has it stopped the number of warrants issued in England and Wales for telephone tapping and mail opening from reaching the highest figure (1,763 in 1997-1998) since records began; nor has it stopped the current government from pushing through the new Terrorism Act enabling state agencies to treat all forms of "protesting" organizations and individuals, including trade unions and pacifist organizations or even just individuals wearing T-shirts or badges with slogans, as "terrorist" and thus subjecting them to ongoing surveillance (Ahmed, 2000; Martinson, 2000; Statewatch, May-August 1999). However futile some of these attempts may turn out to be, together they reveal the contempt for privacy held by those within the state and their willingness to infringe even the

basic rudiments of "private" life. The main point is that even where successfully used to limit state power, the mantra of privacy serves to complete the splitting of human beings into public and private selves (Marx, 1975 [1843]: 222; 1973: 84). This has obviously historically been integral to political emancipation in the liberal

sense, but in doing so it has come to tie us to other forms of oppression - such as that of capital and the state in general - rather than liberate us from them. The "right to privacy" in this sense merely confirms the processes of individualization and commodification in which we find ourselves and which we should be struggling against. It confirms the individualism of bourgeois society by proffering legal confirmation that we can indeed assert our egos against the state; and it confirms the commodification of modern society because it reinforces the prevalence of a concept that can just as easily be used by corporate power in its struggle to create a world after its own image. To put this another way: what "privacy" manifestly fails to do as an organizing concept is provide any grounds for collective resistance-to either state or capital. This is precisely what capital and the state want us to do: they want us to remain rooted in the legacy of the eighteenth-century Robinsonades, to choose the life of what the Greeks thought of as the idiot-a life of "one's own" (idion)-instead of a life in collective

pursuit of a rational society. Knowing that real resistance is always a product of collective action, state and capital want us to think of being up against power-the social power of capital as well as the political power of the state-as (private) individuals rather than as a collective subject; in other words, they want us to be idiots. In fetishising privacy we therefore run the risk of shackling our ability to combat the state collectively. In this sense, to insist on privacy is to play into the hands of the political power of the state and the social power of capital , for not only can the state grant the right to privacy while simultaneously infringing it at every turn, but it can do so by dealing with us as private individuals protecting our own rather than as a collective subject demanding historical change of more world historical importance.

The expansion of privacy makes allows for the further development of neoliberal capitalism. Privacy does not constrain the state but allows the state to support the expansion of neoliberalism Sebastian Sevignani ’12 Unified Theory of Information Research Group “The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora” tripleC 10(2): 600-617, 2012

The capitalist quality of society as class society is expressed by the right to have others work for you and the right to private property in labour’s terms of realisation. These rights are identified with the right to private property in general in an ideological manner (Macpherson 1978). Today’s uni- tary legal frameworks for different sorts of private property are only possible because commodity exchange and appropriation of societally produced surplus are not divisible (Romer 1978, 140). The universal right to private property, to use, abuse, alienate or exchange something, and the right to receive the fruits that the usage of something generates, does not matter if only the things owned are needed for life, or the conditions within which labour can be realised (means of produc-

tion) are private property, or if private property is extended to the labour force (Munzer 2005, 858). In terms of privacy, Niels van Dijk (2010, 64) points to an interesting difference in legislation be- tween Europe and the U.S. While in the U.S. tradition,

personal data is predominantly seen as a commodity and therefore exchangeable (privacy as property), in Europe there is “little room for propertization of personal data” (van Dijk 2010, 64), because privacy is

conceptualized as a perso- na right and important for the individual’s dignity (McGeveran 2009; Shepherd 2012). But human dignity is generally seen as inalienable. In the discussion on the question whether privacy should or should not be alienable, exchangeable, and tradable on the markets, it is crucial to understand that in capitalism any commodification process presupposes rights that cannot be alienated or ex- changed. The labourer must not become a slave, cannot alienate his or her whole person because this

would reverse the double freedom of the labourer (Pateman 2002, 33). This is a feature of capitalist progress in comparison to previous forms of society. According to Marx, this means that domination, which

still exists, is mediated through basic freedoms of the individual. Macpherson (1962, 264; see also Pateman 2002) argues that alienability of the labour force presupposes itself a universal, inalienable right of self-ownership that originates from the practice of commodity ex- change and contains, as already outlined, the circulation sphere-based rights of freedom,

equality, property, and self-interest (Marx 1867/1976, 280). In terms of privacy, I conclude that approaches to privacy as an inalienable right may be helpful but are ultimately not sufficient to be an alternative to capitalist class domination particularly if they operate with the notion of autonomy and privacy as self-possession. Carole Pateman argues that the double freedom assigned to the worker in capitalism is a “polit- ical fiction” (Pateman and Mills 2007, 17f.) since the inalienable part of the individual that enters into employment contracts cannot be separated from the individual’s alienable aspects. When em- ployers buy work force, it is demanded that the worker brings in his or her knowledge, skills, etc., which in fact is his or her person. Labour cannot be separated from person-being and person-

becoming (Marx 1976, 283). The same applies to privacy and personal data. It is a fiction to assume that users can exchange their personal data and that this exchange would not affect their person , which also has to be conceptualised as non-alienable in order to speak meaningfully of free and voluntary exchanges on privacy markets. Pateman

argues that contracts, although entered voluntarily, enable superiority and subordination. Hence, there is also a subordination of the users at stake when they accept commercial SNSs’ terms of use. Such subordination is a precondi- tion for exploitation and class domination ultimately. Ellerman refers to this fiction as a “person- thing mismatch” (Ellerman 2005, 463) as

if aspects of personality could be alienated like things. The political fiction of severability of person and work force or

person and personal data can easily be understood as ideology and fetishism in the sense that I have outlined it here. Whereas privacy can, though ought not, be seen as an inalienable right, private property rea- sonably cannot

(Andrew 1985, 529; Pateman 2002, 20-21; Litman 2000, 1295-1297). The closer privacy comes to private property, the more privacy is alienable or exchangeable, becoming itself a commodity. It does then not only contribute to the capitalist ideology, but also directly to exploitation. In Table 1, I summarise what

we can learn from Marx in terms of understanding privacy in (informational) capitalism. Dominant theories of privacy, focussing on individual control and exclusion of others, are ideological as they originate from commodity exchange while hiding individuals’ sociality. They are part of circulation sphere-based objective

forms of thought that contain the mutual recognition of market- ers as free and equal private property owners. Such freedom, equality, and lastly privacy, however, do not contradict exploitation and class division in society that take place in the sphere of production. In a circular movement, class status has then again a constraining effect

on freedom, equality, and privacy. If privacy may be seen as exchangeable private property, privacy itself can in addition to labour force become a commodity and therefore part of the exploitation process. It contributes then directly to class divisions in society. Such newer forms of exploitation, based on economic surveillance, are described shortly in the next section, where Diaspora* is compared to profit- oriented SNSs, such as Facebook and Google+.

Unless neoliberal capitalism is reined in, extinction is guaranteed – the tipping point is near. Molisa, Philosophy PhD, 14

(Pala Basil Mera, “Accounting For Apocalypse Re-Thinking Social Accounting Theory And Practice For Our Time Of Social Crises And Ecological Collapse,” http://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/3686/thesis.pdf?sequence=2)

Ecologically too, the situation is dire. Of the many measures of ecological well-being – topsoil loss, groundwater depletion, chemical contamination, increased toxicity levels in human beings, the number and size of “dead zones” in the Earth’s oceans, and the

accelerating rate of species extinction and loss of biodiversity – the increasing evidence suggests that the developmental trajectory of the dominant economic culture necessarily causes the mass extermination of non- human communities , the systemic destruction and disruption of natural habitats, and could ultimately cause catastrophic destruction of the biosphere . The latest Global Environmental Outlook Report published by the United Nations Environment Program (UNEP), the GEO-5 report, makes for sobering reading. As in earlier reports, the global trends portrayed are of continuing human population growth, expanding economic growth,6 and as a consequence severe

forms of ecological degradation (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007). The ecological reality described is of ecological drawdown (deforestation, over-fishing, water extraction, etc.) (UNEP, 2012, pp. 72, 68, 84, 102-106, );

increasing toxicity of the environment through chemical and waste pollution , with severe harm caused to human and non-human communities alike (pp. 173- 179); systematic habitat destruction

(pp. 8, 68-84) and climate change (33-60), which have decimated the number of species on Earth, threatening many with outright extinction (pp. 139-158). The most serious ecological threat on a global scale is climate disruption, caused by the emission of greenhouse gases from burning fossil fuels, other industrial activities, and land destruction (UNEP, 2012, p. 32). The GEO-5 report states that “[d]espite attempts to develop low-carbon economies in a number of countries, atmospheric concentrations of greenhouse gases continue to increase to levels likely to push global temperatures beyond the internationally agreed limit of 2° C above the pre-industrial average temperature” (UNEP, 2012, p. 32). Concentrations of atmospheric methane have more than doubled from preindustrial levels, reaching approximately 1826 ppb in 2012; the scientific consensus is that this increase is very

likely due predominantly to agriculture and fossil fuel use (IPCC, 2007). Scientists warn that the Earth’s ecosystems are nearing catastrophic “tipping points” that will be marked by mass extinctions and unpredictable changes on a scale unseen since the glaciers retreated twelve thousand years ago (Pappas, 2012). Twenty-two eminent scientists warned recently in the journal, Nature, that humans are likely to have triggered a planetary-scale critical transition “with the potential to transform Earth rapidly and irreversibly into a state unknown in human experience”, which means that “the biological resources we take for granted at present may be subject to rapid and unpredictable transformations within a few human generations” (Barnofsky et al., 2012). This means that human beings are in serious trouble, not only in the future, but right now. The pre-industrial level of carbon dioxide concentration was about 280 parts per million (ppm). The Intergovernmental Panel on Climate Change (IPCC) estimates concentrations could reach between 541 and 970 ppm by the year 2100. However, many climate scientists consider that levels should be kept below 350 ppm in order to avoid “irreversible catastrophic effects” (Hansen et al., 2008). “Catastrophic warming of the earth” would mean a planet that is too hot for life – that is, any life, and all life (Mrasek, 2008). We need to analyze the above information and ask the simple questions: what does it signify and

where will it lead? In terms of the social crises of inequalities, the pattern of human development suggests clearly that although capitalism is capable of raising the economic productivity of many countries as well as international trade, it also produces social injustices on a global scale. The trajectory of capitalist economic development that people appear locked into is of perpetual growth that also produces significant human and social suffering. In terms of the ecological situation, the mounting evidence from reports, such as those published by UNEP, suggest that a full-scale ecocide will eventuate and that a global holocaust is in progress which is socially pathological and biocidal in its scope (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007). Assuming the trends do not change,

the endpoint of this trajectory of perpetual economic growth, ecological degradation, systemic pollution, mass species extinction and runaway climate change, which human beings appear locked into, will be climate apocalypse and complete biotic collapse.

Our alternative is to reject the individualistic concept of privacy. Privacy needs to be reimagined outside of capitalist social relations as a collective product, not something in the control of individuals analogous to propertySebastian Sevignani ’12 Unified Theory of Information Research Group “The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora” tripleC 10(2): 600-617, 2012

Diaspora* performs practically an alternative concept of privacy that protects users from com- modification, but at the same time does not aim at an alternative to a possessive-individualistic privacy notion. As such, this is not contradictory and may rest with Diaspora*’s multi-faceted - wilfully or not – embeddedness within capitalist structures that are dominant in society and remain

dominant in people’s minds. However, in order to strengthen the alternative quality of Diaspora* and other non-commercial SNSs,

the privacy issue and its possessive individualistic capitalist coinage should be rethought and not simply be permitted to enter the discourse about alternative SNSs. Diaspora* challenges commodity production; hence, it challenges capital accumulation in the realm of SNSs. Its alternative and cooperative mode of production

provides, according to ideology theory, a base for thinking about an alternative notion of privacy. I have argued that an alternative notion of privacy demands grounding in alternative material practices since the dominant notion of privacy is associated with commodity exchange. Thinking about an alternative notion of privacy instead of abandoning it is relevant and worthy as privacy, although predominantly occupied by possessive individualistic concepts such as exclusion and private property, also represents the basal human need of individuality that cannot be meaningfully denied by any alternative form of society. As far as I can see, there is no positive Marxist theory of privacy and I cannot provide one here. Marx’s focus on a negative critique of capitalism first and foremost aims to abolish social structures that inhibit human potentials and creativity. Following this tradition, Fuchs (2011b) and Allmer (2011) provide some critical remarks for a socialist notion of privacy. I tried to apply myself Marx’s nega- tive critique on capitalist ideology and private property to privacy, following

the often mentioned connection between both of the latter terms. However, an alternative vision of privacy must contain more than an opposition to societal relations of inequality; rather it should constructively theorise the value of privacy alternatively and based on a “social conception of individuality” (Pateman 1989, 136). It is an important theoretical task to reflect on an alternative relation between

the individual and society and various approaches that take seriously the critique of individualistic privacy notions are taking this path (for instance: Solove 2008, 91-98; Cohen 2012). Unfortunately, these approaches do not engage with Marx’s profound analysis of capitalist domination structures. In his fetish analysis, Marx has shown that the individual, following the commodity exchange induced assumption that he or she owes nothing to society, cannot get rid of society. Society asserts itself behind individuals’ backs and predetermines their behaviour. Accepting and consciously shaping sociality would be the better

option. Taking privacy as an individual claim that excludes others and is raised against society from the outset thus makes no sense at all. Privacy can only be a “societal license” (Etzioni 1999, 196). It is a col- lective task on how best to satisfy individual privacy needs, such as a home, being alone, silence, reflection, recreation, freedom

of expression and decision-making, personal and intimate relations, trust and respect, secrecy, and protection from harm. Pure subjective control theories of privacy should be rejected . Instead, comprehensive democratic structures are required to enable individuals to effectively shape their privacy license in association with others. However, privacy is then not my property and I cannot exchange it and contract it ou t; it is then a collectively achieved individual value that I can only claim as a member of society. Understanding privacy as an aspect of self- possession then makes no sense. It should be conceptualised as an inalienable collective right. Objective notions of privacy as an outcome of conscious association are needed, and Diaspora* has practically developed one: it is based on the idea

of privacy for SNS users that challenges economic surveillance. As a consequence, the idea of the exploitation of users and the commodifi- cation of data, as done by Facebook and Google+, is rejected. Contributors to Diaspora* are asso- ciating themselves consciously, not mediated by commodity exchange, but on behalf of copyleft. They have created an objective notion of privacy in and through their practices. This is vital since a basal assumption of Marx was that there would be no individuality, freedom, autonomy, and privacy as long as there is systematic exploitation and class domination in society. It turns out that what is easier to accept as a starting point for theory, i.e. a societal concept of privacy, is much harder to achieve for Diaspora*, although some consequences of this concept are already realised in Dias- pora*’s opposition to exploitation. Diaspora* provides an alternative to privacy commodification and user exploitation, but its struggle is fought out on the ideological battlefield of privacy which is not a neutral one, and is rather predetermined by possessive individualistic thinking that objectively con- tradicts Diaspora*’s alternative goals. Diaspora* refers to ownership and individual control exactly because these are the most powerful means of action in capitalism. I have introduced views, such as informational exceptionalism, that welcome changes in the intangible

mode of production, but do not challenge capital accumulation in general. Sticking to possessive individualistic premises, albeit in terms of privacy, may ultimately refer to an immanent transformation of capitalism that reproduces the overall system rather than to a real alternative to it. The challenge for a Marxist theory of privacy and for alternative SNSs, such as Diaspora*, is to thoroughly disentangle privacy from private property (Goldring 1984, 321f.) in such a way that privacy neither appears as a commodity itself nor contributes to the ideological premises of commodity production and

capital accumulation. A material base for such thinking can already be found in Diaspora*, copyleft, and projects of a similar nature.

Links

Individual Privacy Corporate Privacy Privacy for the individual necessitates and implies privacy for corporations and shielding them from scrutiny. Charles Sampford ’91 Foundation Dean and Professor of Law, Griffith University, Queensland. LAW, INSTITUTIONS AND THE PUBLIC/PRIVATE DIVIDE 20 Fed. L. Rev. 185 1991

Herein lies the power of the words "public" and "private." They invoke values central to liberal political philosophy and the debased ideological forms in w hich those values affect legal, political and popular debate. Indeed it is in order to invoke such values that it is most commonly used. Nowhere is this clearer than in the move to "privatise" government controlled institutions. That power is bolstered by the image of a single division between two quite separate spheres. The rhetoric always refers to the public and the private spheres - despite the multiplicity of contrasts between "public" and "private". Multiple distinctions would undermine the moral significance that is attached to it and the supposed moral importance of keeping them separated. The word "private" evokes visions of the inner workings of the mind and those things that individuals do all by themselves and is contrasted to the institutions of the state claiming to act for the people as a whole. Those things which are not public in the latter sense are often called "private" in order to benefit from this image of an individual minding his or her own business. The transferability of this image would be severely constrained if a multitude of distinctions were admitted in the rhetoric. Conceptions of the private sphere are firmly centred on individuals – what they think, do and agree among themselves. At its core, it includes that to which rights of privacy are claimed, including individuals' thoughts, feelings and facts about themselves.13 As such it includes personal morality and the conscience that reflects it. This is what one writer calls the individual's "zone of solitude" in which the individual claims a right to be left alone.14 But it extends beyond thoughts and facts to the actions of individuals - especially those that supposedly affect no one else. Beyond that, the private sphere is seen to include interactions with other persons based on affection, antipathy and satisfaction - especially those involving family and friends. Most theorists go much further and include interactions with others on the basis of contract (which is generally seen as "voluntary agreement"). Accordingly labour relations, market transactions, the formation of corporations, even the huge takeovers that fundamentally affect Australian business are designated as "private". The privacy of the bedroom and bath-house becomes the privacy of the boardroom . Some of this is a long way from individuals contemplating their thoughts and minding their own business, but the rhetoric is always framed in those terms. That rhetoric assists attempts to ascribe to corporations and other "private" entities the values and images of individuals contemplating their navels and to claim the same protection from the public. Private property is also included within the private sphere and plays an important role in enhancing and bolstering it.15 This inclusion can happen in one of three ways. Property is sometimes seen as an attribute of the person16 or as something pre-social that the individual brings with him or her into society (rather than being one of the things the agreed society generates). Alternatively property could be seen as something to which the individual relates and involves actions that refer to no one else. Finally, property could be seen as defining the private sphere - an individual's private sphere being confined to, and delimited by, his or her property holdings. If "the private" is seen

as populated by individuals, "the public" is seen to be made up of collectivities that involve all or part of the population. As such it is centred on the state - especially those activities which ensure the involvement of the entire population by the use of coercive laws. 7 The public can also be extended to include collectivities that involve large numbers of citizens and/or that are open to all. The rhetoric and imagery of the "private" refers to individuals and the things they can do by or among themselves without reference to anyone else. Because of this imagery it is possible to see the private as natural, voluntary and pre-social - and to appropriate to it values such as autonomy and individual rights.'" Those rights start with the right to privacy and continue through other negative liberties (or "autonomy rights"'19) to private property rights and the rights of individuals to form their own organisations and to resist interference in them. The private is not only characterised by the fact that decisions are made by individuals rather than collectives but as "matters in which the individual can tolerate no right of control in anyone but himself'.2

Privacy = IndividualismPrivacy establishes security to reify the capitalist system and therefore inequality in class, gender, and race. Aaron Henry 2013, Carleton University Sociology and Political Economy PhD candidate, Winter 2013, “Perpetual Object of Regulation: Privacy as Pacification,” Socialist Studies/Études socialistes 9-2, http://socialiststudies.com/article/view/23507/17392

My point is not that ‘privacy’ produces these conditions; the estrangement of individuals from species-life is innate to capitalist

production. My point is that privacy serves to further acclimatize us to this reification of species-life as nothing more than the atomized world of the ‘individual’. Which is a way of saying that privacy is part and parcel of the process of pacification, a key mechanism in the fabrication of bourgeois order. In particular, it is only in the absence of species-life, when our relations of our social dependence take on the fantastic form of relations between things and relations between people appear as forces alien to us, that the partitioning of social life into private isolated, ‘natural’ individuals becomes feasible; “liberty is... the right to do everything which does not harm others” it is essentially “the right of the circumscribed

individual, withdrawn into him/herself” (Marx, 1975, 42). Thus, the demand for privacy is not merely forever circumscribed by the logics of security but it entrenches the very separations between people presupposed by capitalist social relations that security is used to enforce and maintain. Privacy, then, promises a life apart, a mode of existence separate from others and to this end is presupposed by our appearance as individuals who are autonomous from another and can, therefore, ‘choose’ to be further detached and apart. Before concluding I

think there is an overarching political implication from this relation between privacy, security and capital. This appearance of choice, of course, serves only to further obfuscate the social nature of human existence and our inextricable tie to unequal class, gender and race relations.

Privacy stems off individual interests Judith DeCew 13, Chair and Professor of Department of Philosophy at Clark University, 8/9/2013, Stanford Encyclopedia of Philosophy, “Privacy,” http://plato.stanford.edu/entries/privacy/

Yet it has been difficult for philosophers to provide clear guidelines on the positive side of understanding just what privacy protects

and why it is important. There has been consensus that the significance of privacy is almost always justified for the individual interests it protects: personal information, personal spaces, and personal choices, protection of freedom and autonomy in a liberal democratic society . (Allen, 2011;

Moore, 2010; Reiman 2004; Roessler, 2005). Schoeman (1992) eloquently defended the importance of privacy for protection of self-expression and social freedom. More recent literature has extended this view and has focused on the value of privacy not merely for the individual interests it protects, but also for its irreducibly social value. Concerns over the accessibility and retention of electronic communications and the expansion of camera surveillance have led commentators to focus attention on loss of individual privacy as well as privacy protection with respect to the state and society (Reiman, 2004; Solove, 2008; Nissenbaum, 2010).

While the individual may value privacy over concerns for public safety, it is the level of embeddedness that the government has engrained in our minds that keeps it from being challenged. Amitai Etzioni 99, University Professor at the George Washington University, “The Limits of Privacy”, 1999, Basic Books (e-book), Pg 22-23

“The tendency to allow privacy considerations to take precedence over concerns for public safety and health is not accidental . It reflects fundamental conceptions that are deeply embe d ded in our civic culture , public policies , and jurisprudence . The evidence presented in this book points to the need for a different conception of privacy, one that accords it equal standing with the common good, without privileging either value. To reconceptualize privacy, a highly revered right, may seem offensive, almost sacrilegious. We traditionally view individual rights as strong moral claims with universal appeal, indeed we perceive them as inalienable rights. Although we also realize that individual rights were formulated under certain historical conditions, we tend to conceive of these formulations as truths rather than mores fashioned for a given time that are open to amendment as conditions change . “I argue in the following pages that privacy is a contingent concept. Although some vague notion of privacy exists in most, if not all, soci- eties,7 the specific way we treat privacy in our law and culture is a recent phenomenon, and one that has already been recast at various times. In other words, privacy is hardly a near-sacred concept that cannot be reformulated. I also show that the governing formulation of privacy in our society and time treats ” “it as an unbounded good, privileging it over the common good. This conception was well suited to the sociohistorical conditions that prevailed from the formulation of privacy as a legal concept until roughly 1960 . However, in the wake of the rise of radical individualism between 1960 and the 1990s, a new conception of privacy is called for , one that does not privilege privacy over the common good but rather is open to balance with concerns for social responsibilities, a communitarian concept.8” Excerpt From: Amitai Etzioni. “The Limits Of Privacy.” iBooks.

Privacy = LiberalismPrivacy is shaped by legal action and perpetuates liberalism and individualismJulie E. Cohen 12, Professor of Law at Georgetown University Law Center, November 5, 2012, “What Privacy is For,” Harvard Law Review Vol. 126, http://poseidon01.ssrn.com/delivery.php?ID=114069009009103112028020102084014106004049020088012091073071102111008113067010110024018110017063062049097118006105018125125004008043088026052070104119080093026050035013096089111075121005004114000088089001067124082089127071111089006122120101024&EXT=pdf&TYPE=2

Privacy’s bad reputation has deep roots in privacy theory. This Part traces those roots to the tradition of liberal individualism, which supplies both the conventional understanding of the self that privacy is thought to protect and the criteria that an intellectually defensible theory of the right to privacy must satisfy. 4 Neither set of commitments has served privacy theory well. The self who benefits from privacy is not the autonomous, pre-cultural island that the liberal individualist model presumes. Nor does privacy reduce to a fixed condition or attribute (such as seclusion or control) whose boundaries can be crisply delineated by the application of deductive logic. Privacy is shorthand for breathing room to engage in the processes of boundary management that enable and constitute self-development. So understood, privacy is fundamentally dynamic. In a world characterized by pervasive social shaping of subjectivity, privacy fosters (partial) self-determination. It enables individuals both to maintain relational ties and to develop critical perspective on the world around them.

Scholarship about privacy within the U.S. legal academy is infused with the commitments of liberal political theory, first and foremost of which is a conception of the self as inherently autonomous. In its ideal form, the liberal self possesses both abstract liberty rights and the capacity for rational deliberation and choice, and is capable of exercising its capacities in ways uninfluenced by cultural context. Not all privacy scholars subscribe to this vision in its purest form; like liberal political

theorists more generally, privacy scholars disagree about whether autonomy is best understood as negative or positive liberty. Some endorse the negative liberty paradigm, arguing that privacy is best understood as an exercise of personal choice.5 Others argue that privacy is a vital enabler of positive liberty, and that individuals therefore need considerable privacy protection to attain the independence that the liberal model assumes.6 All seem to agree, however, that the self possesses “an autonomous core—an essential self identifiable after the residue of influence has been subtracted.”7 The positive liberty paradigm, moreover, has made little headway within U.S. privacy policy, which is dominated instead by a commitment to notice-and-choice that derives from the negative liberty paradigm. So understood, however, privacy’s function is principally defensive and ameliorative. It preserves negative space around individuals who are already fully formed or mostly fully formed, affording shelter from the pressures of societal and technological

change. That understanding of privacy links it inseparably to stasis.

Privacy = CapitalismThe distinction between public and private is central to capitalist expansionA. Claire Cutler 1997, Professor of International Law and Relations in the Political Science Department at the University of Victoria. Graduate of the University of British Columbia (BA; PhD), the London School of Economics and Political Science (MSc) and McGill University (LLB). Research Fellow with the Centre for Global Political Economy, Simon Fraser University, Burnaby, BC., Summer 1997, “Artifice, Ideology and Paradox: The Public/Private Distinction in International Law”, Review of International Political Economy, pg. 261-263

This article examines the foundational and problematic distinction between public and private international law, focusing specifically on international trade relations, It argues that the distinction is not reflective of an organic, natural or inevitable separation, but is an analytical construct that evolved with the emergence of the bourgeois state . Moreover, the distinction is in empirical decline as forces of∂ globalization and privatization we blurring the separation between private and public authority. These forces are consolidating a corporate/ legal/governmental elite and are enhancing the opportunities and resources for private actors to create and enforce international commer-cial norms. Private actors are assuming roles conventionally attributed to state authorities. Indeed, a range of globalizing forces are integrating the world and, simultaneously, disintegrating previously embedded institutions and practices, effecting a reconfiguration of the relationship between public and

private authority (Jameson, 1991). At the heart of these forces is the development of an alliance between private/corporate and public/state authorities, which are united in their commitment to the expansion of capitalism through the further disembedding of inter-national commerce from national, social and democratic controls. Stephen Gill (1995: 413) refers to these developments as 'disciplinary neoliberalism' and anew constitutionalism, which 'confers privileged rights of citizenship and representation on corporate capital, whilst constraining the democratization process that has involved struggles for representation for hundreds of years'. Significantly, disciplinary neolib-eral practices are being articulated through private law concepts . Indeed, the public/private law distinction is being asserted with new vigour as justification for the supremacy of private legal regulatory arrangements. These arrangements enhance and facilitate globalization by minimizing the impact of domestic and

national impediments to international countervail activities. They are also effecting a reconfiguration of private and public authority and diminishing the empirical significance of the distinction .∂ However, although in decline empirically, the distinction continues to hold powerful conceptual and symbolic meaning, creating a disjuncture between commercial practice and theory. This disjuncture is, in turn, reflective of the more profound impact that changes in capitalist produc-lion are having on the way in which states and societies relate nationally and globally (Cox, 1981). As an analytical construct, the public/private distinction was articulated as part of the ideological foundations of the bourgeois state.' In international law, it provided a means for reconciling the principles and practices of state sovereignty

with the extraterritorial application of legal obligations. The separation of public and private domains, of political and economic activity, is central to the constitution of capitalist productive relations and is a 'structural requirement for the reproduction of capitalist societies' (Hirsch, 1995: 271; Wood, 1981). However,

the content of the public and private realms has not remained constant. Changes in patterns of capitalist production have shifted the placement of the boundary between the two realms and altered their content. The contemporary erosion or blurring of the distinction is a significant reflection of the crisis of late capitalism. One aspect of this∂ crisis involves the 'de-linking of economic liberalism and democracy' (Hirsch, 1995: 297), as public authorities privatize their activities, abdi-cating, abandoning or selectively devolving their public roles on private agents who are unconstrained by principles of democratic accountability.

Another aspect of this crisis involves globalizing influences that are enhancing the regulatory roles of private corporate actors. Private commercial actors are reasserting the superiority of private law in facilitating the internationalization of productive and financial relations .' Increasingly, decisions over

production, wages, employment, working conditions, environmental standards and the like are being removed from national public policy-making space and relocating in private space.

Privacy = Securityprivacy does not shield society from security, it only reinforces security Aaron Henry 2013, Doctorate Candidate for Sociology, “The Perpetual Object of Regulation: Privacy vs Pacification,” http://socialiststudies.com/article/view/23507/17392

We have established the idea that ‘privacy’ has the effect of disassociating security from the fabrication of private life or, rather, privacy creates the conception that security is distinct and balanced by liberalism. What does any of this have to do with privacy and the further alienation of our collective social

power? It is not enough to state that privacy is the means whereby security extends itself into social life and assures us of its own proportionality or reasonableness. Rather, privacy not only fails to challenge capital, as Neocleous has demonstrated (2002, 106) but, further still, lends itself to the reification of capitalist social relations and the further separation of the individual to their own social power and objective conditions of life. Privacy not only numbs us to the logics of security and its reasonable

agreement to let certain areas of our lives occur seemingly unencumbered by security projects. Rather, it ensures, through the limits privacy sets on our experiences of collective life, the forms of political activity and social engagement that appear possible to us, that in advancing privacy we only further reinforce security and its colonization of “all aspects of human practices and thinking” (Rigakos, 2011, 62).

Security uses privacy to pacify capitalist society in order to push its their agenda. This ensures more conflict and war, not less Aaron Henry 2013, Doctorate Candidate for Sociology, “The Perpetual Object of Regulation: Privacy vs Pacification,” http://socialiststudies.com/article/view/23507/17392

“Security is not just hegemonic, it is hegemony”, says Rigakos (2011, 58). Attempts to reveal the tensions and points of

incoherency within security projects simply seem to drive the greater refinement of these very projects. In many respects, it is the hegemony of security, its analytical inscrutability that has prompted the turn to pacification both as a concrete historical formation of rule and as an analytical concept, a means to reveal its contingencies, its overlaps, and points of formation (Rigakos, 2011, 61; Neocleous, 2010). The other problem posed by the hegemony of security, implicit to the first problem perhaps, is that in attaining hegemony it has colonized a number of social forms. This means that some relations that appear like sites of possible resistance, such as privacy, in fact form capillary points in the economy of relations behind security. With this problem in mind I have tried to tease out the historical relation of privacy to security in

capitalist society, so as to demonstrate how the former was, from the outset, entangled with the latter. Security presupposes privacy, decides its scope of power and the facets of social life to which it applies. Furthermore, not only does security condition privacy but also privacy itself, as a mode of life, has the effect of pacifying us to the further penetration of security into social life. Thus, privacy will be in existence for as long as the logics of security remain in play; for, as I outlined earlier in this discussion, it is the private sphere of relations, the sanctity of homo-economicus, that the project of police has long since had as its object. We on ‘the Left’ would do well to consider these aspects of

privacy. As suggested by Tyler Wall’s paper in this collection, it is by making appeals to privacy, that drones in the United States have made the transition from battlefield technology to a component of the ‘domestic’ security apparatus. Following the insights from this paper, it can be argued that challenging drones through

privacy will ostensibly experience moderate success. Drones perhaps will only be flown at certain times, in certain areas, and will contravene these rules only when vital security or safety concerns arise .

The footage they capture will perhaps even be handled in a manner similar to the PNR data. Yet it is the security apparatus itself, not privacy, that will determine how these limits operate. These limits not only become our measure of freedom and autonomy but also structure our pacification. Thus, in a society that approaches security through the right to privacy, the proliferation of the conduct of war abroad and at home, the organization of human potential into a dehumanizing economic mode of production, will continue apace; insofar as these forces will continue to confront us as happenstance things, filtering in and out of each individual’s private, insular existence. To live this pacified mode of life is no less the promise of privacy than it is the guarantee of security.

Privacy = AlienationThe concept of privacy makes individuals vulnerable to and unable to reject oppression through alienationAaron Henry 2013, Carleton University Sociology and Political Economy PhD candidate, Winter 2013, “Perpetual Object of Regulation: Privacy as Pacification,” Socialist Studies/Études socialistes 9-2

What I want to demonstrate in this paper is that the relation of privacy to security as both an object threatened by security and as a means of regulating security projects is the product of a longstanding relation between privacy, security and capital . This relation is expressed in two ways. First, while

privacy has been invoked as a means to resist projects of security, I argue that privacy is in fact deployed as a means to structure the fields of relations through which security interventions are made.2 In this sense, when the power of state or capital intervenes upon the individual, privacy emerges as a concept. Privacy, a retroactive concept, exists as a means to assuage individuals that the duration and scope of security projects will be ‘reasonable or proportional’ ; thus, security presupposes and delimits privacy. Second, in the course of defending the individual 's freedom and autonomy over their inner world, privacy reinforces private property and private life , the very relations projects of security safeguard. Thus, privacy acclimatizes us to a mode of existence where we are alienated from our collective social power, and so we confront relations of domination and exploitation as private individuals . This commodification of our selves is , I suggest , part of the condition of pacification .

As security gives society an appealing sense of privacy, people estrange themselves into individuals ruled by abstractions indifferent to social inequalities Aaron Henry 2013, Doctorate Candidate for Sociology, “The Perpetual Object of Regulation: Privacy vs Pacification,” http://socialiststudies.com/article/view/23507/17392

As Marx noted “labour is, therefore, the objectification of [human] species life,” reality is constructed through and mediates upon the social, economic, and biological conditions through which humans contemplate their own objectively constituted existence (Marx, 1975, 76). It follows that species being, as both the object and will of one’s practical activity and as the objective reality contained and represented in the products of labour, is estranged by the condition of labour in capitalist society. Thus, in the course of making the worker’s product nothing more than the “means to our

physical existence” in equal measure species-life itself becomes [merely] a means” as well (Marx, 1975, 77). The estrangement of life and labour from nature and other people force both nature and other people to “appear as objects other than and differentiated from” [the labourer] (Marx, 1975, 78). As such, relations that one confronts independently of one’s own particular labour, forces of ‘nature’ and other individuals appear “as something alien and objective, confronting [individuals] not as their relations to one another but as our subordination to relations which exist independently of [us]” developing merely from the collisions between mutually indifferent individuals (Marx, 1973, 157). To this end, with the advent of capitalist relations, the individual’s understanding of themselves as part of a species life dissipates and instead the predominant social bond between individuals is that of “a spontaneous interconnection, [a] material and mental metabolism…independent of the knowing and willing individuals [which] presupposes their “reciprocal independence and indifference” (Marx,

1973, 161). Consequently, as the contemplation of social life of life-activity as a shared social product wanes and in its place individuals increasingly find themselves “ruled by abstractions” as

objective relations of dependency, the reciprocal relations of production appear separate and autonomous to the individuals who constitute these very relations (Marx, 1973, 164).

My point is not that ‘privacy’ produces these conditions; the estrangement of individuals from species-life is innate to capitalist production. My point is that privacy serves to further acclimatize us to this reification of species-life as nothing more than the atomized world of the ‘individual’. Which is a way of saying that privacy is part and parcel of the process of pacification, a key mechanism in the fabrication of bourgeois order. In particular, it is only in the absence of species-life, when our relations of our social dependence take on the fantastic form of relations between things and relations between people appear as forces alien to us, that the partitioning of social life into private isolated, ‘natural’ individuals becomes feasible; “liberty is… the right to do everything which does not harm

others” it is essentially “the right of the circumscribed individual, withdrawn into him/herself” (Marx, 1975, 42). Thus, the demand for privacy is not merely forever circumscribed by the logics of security but it entrenches the very separations between people presupposed by capitalist social relations that security is used to enforce and maintain. Privacy, then, promises a life apart, a mode of existence separate from others and to this end is presupposed by our appearance as individuals who are autonomous from another and can, therefore, ‘choose’ to be further detached and apart . Before

concluding I think there is an overarching political implication from this relation between privacy, security and capital. This appearance of choice, of course, serves only to further obfuscate the social nature of human existence and our inextricable tie to unequal class, gender and race relations .

Market RhetoricBelief in the free market and use of its concepts supports the expansion of neoliberalimMartha T. McCluskey 10, Professor of Constitutional Law and Economics at State University of New York Law School, 2010, “From the Welfare State to the Militarized Market,” http://poseidon01.ssrn.com/delivery.php?ID=98611910302207210309201507610700902200802303003509105609111602106400403107812607511702603501304403911100701210701808800000801700700700001609210700703107200008807600504904911407411909310506709510602101308302608500908910711907701001508

By the late twentieth century, wealthy elites used the rhetoric of market freedom to help mobilize a broader coalition against the welfare state vision spurred by the New Deal and expanded in new regulatory systems and government social programs in the 1960s through the early 1970s (Phillips-Fein 2009).

This coalition succeeded in weakening law reforms, establishing new legal rights for corporations, controlling regulatory agencies, influencing the judiciary, and building new political, academic, and legal institutions to advance elite business interests. Indeed, this mobilization has helped to reestablish some substantive constitutional protections for concentrated wealth in the guise of basic due process and neutrality (McCluskey 2007).

This legal context has helped give material substance to the ideological claim that the bad choices facing existing market losers are the tragic result of scarce economic resources, not the unjust result of unequal political power. For example, changes in the regulation of international trade and finance in

the 1970s through the 1990s helped increase the mobility and volatility of capital in relation to workers and communities. Those changes in background laws helped make collective action for better wages—either through legislation or labor organizing—a costlier choice more likely to risk capital flight (to jurisdictions with less state labor protection), and thereby jeopardize jobs and wages for those workers and communities.

Conservative activists harnessed this real (but contingent and political) increase in scarcity to further advance the free market story. That story explained that the only way to effectively resist this scarcity is to further loosen the constraints on the market winners with the power to control the limited resources on which others increasingly depend. In this view, workers, communities, and nations faced with capital flight can only retain jobs or wealthy taxpayers, for example, by further shifting taxes and market risk to those without the power to transfer assets elsewhere, or by further directing government spending and regulatory support to protect investors rather than schools, the environment, public health, general infrastructure, or social services (Enrich 1996). Although promoted by conservatives, this story has convinced many across the political spectrum in the United States since it exposes the real economic insecurity perceived by many of the middle class in the late twentieth century.

Liberalism = CapitalismLiberalism and capitalism are entwined philosophies revolving around the individual as the unit of society with right to privacyOfer Raban 12, Professor of Law at University of Oregon, 5/12/2012, “Capitalism, Liberalism, and the Right to Privacy,” Tulane Law Review, Vol. 86, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2069647

It should not be surprising that capitalism and liberalism rose more or less simultaneously in the West.23 First,

the two theories enjoy substantive overlaps. Both call for limited state interventions in spheres of activity—the economic and the personal—that cannot be neatly separated. Thus, private property is not only a quintessential economic liberty, but also a precondition to many personal freedoms. (“[A] people averse to the institution of private property,” proclaimed Lord Acton, “is without the first element of freedom.”)24 And the freedom

to choose one’s trade, to give another example, has obvious footings in both the economic and personal spheres.25 Indeed, some of the seminal works of capitalism and liberalism, including those of Adam Smith and John Locke, often treated economic and personal freedoms as one and the same thing .26 Additionally, the

philosophical underpinning of both theories is similar. As already mentioned, both theories regard the individual as the fundamental proprietor of economic and personal liberties. And both rely on a view of individuals as principally self-interested and rational:27 on the whole, individuals do not pursue self-

destructive ends through unintended impulses, but self-serving aims through effective means.28 Individuals, for both theories, are natural welfare maximizers.

Capitalism and liberalism embody the same principle of the personal sphere Ofer Raban 12, Professor of Law at University of Oregon, 5/12/2012, “Capitalism, Liberalism, and the Right to Privacy,” Tulane Law Review, Vol. 86, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2069647

The logic of liberalism follows closely the logic of capitalism. While capitalism is concerned with the pursuit of economic wellbeing, liberalism is concerned with the pursuit of personal well-being. Thus, liberalism’s fundamental precept is the creation of a free personal sphere (paralleling capitalism’s economic sphere) within which actors freely pursue their personal welfare.8 Such a free personal sphere, free from public or private coercion, is purported to maximize personal prosperity (just as a free economic sphere maximizes economic

prosperity).9 Accordingly, as with capitalism, liberalism limits state intervention in the personal sphere to certain specified conditions which parallel those we saw with capitalism .10

At: Privacy Constrains the StatePrivacy is not an actual limit on the state – privacy enables projects of security and ensures they can function. The idea of privacy enhances state authority and powerAaron Henry 2013, Carleton University Sociology and Political Economy PhD candidate, Winter 2013, “Perpetual Object of Regulation: Privacy as Pacification,” Socialist Studies/Études socialistes 9-2, http://socialiststudies.com/article/view/23507/17392

There is a conviction today that privacy is in a state of irretrievable crisis. In addition to the collection and sale of day-to-day personal

activity by telecommunications services and social networking sites, programmes of surveillance and registration have allegedly eroded what were previously understood as the firm borders between public and private spheres of relations. That this has happened or is in the process of materializing has taken on the weight and opacity of a social fact. Yet,

while privacy is said to be in a state of crisis, the ‘right to privacy’ is often trumpeted by liberals as the counterweight to balance the intrusion of state projects into the lives of individuals. Indeed, this appears to be the general sentiment that rests behind initiatives like the ‘Orwell Award’ given to companies that have violated privacy, or the

American Civil Liberties Union recent mobilization against Drones as a privacy concern. Thus, privacy is presented as means to make intrusions into the life of the individual proportional to the objectives of security projects, and in some instances security projects are legitimized for the forms of privacy they safeguard (Cavoukian, 1999, 13). To this end, privacy is subject to a rather peculiar positioning as both a relation threatened by security and as a regulative principle capable of ensuring the ‘acceptable’ limits of security projects. What I want to demonstrate in

this paper is that the relation of privacy to security as both an object threatened by security and as a means of regulating security projects is the product of a longstanding relation between privacy, security and capital. This relation is expressed in two ways. First, while privacy has been invoked as a means to resist projects of security, I argue that privacy is in fact deployed as a means to structure the fields of relations through which security interventions are made.2 In this sense, when the power of state

or capital intervenes upon the individual, privacy emerges as a concept. Privacy, a retroactive concept, exists as a means to assuage individuals that the duration and scope of security projects will be ‘reasonable or proportional’; thus, security presupposes and delimits privacy. Second, in the course of defending the individual's freedom

and autonomy over their inner world, privacy reinforces private property and private life, the very relations

projects of security safeguard. Thus, privacy acclimatizes us to a mode of existence where we are alienated from our collective social power, and so we confront relations of domination and exploitation as private individuals. This commodification of our selves is, I suggest, part of the condition of pacification.

First, I attempt to theorize how security and its relation to capital render it not only generative of privacy but structure its perimeters. I demonstrate the formation of this relationship between security and privacy through a critical reading of Thomas Hobbes’ Leviathan. Second, I offer a contemporary example of this relation between privacy and security through an analysis of the Passenger Name Record (PNR) agreement between the United States and the EU. Finally, I conclude by

reviewing how privacy as desirable form of existence constitutes a form of pacification insofar as it not only fails to challenge capital but has further entrenched the logics of security into social life. The relation between capital and the formation of the private sphere/privacy is hardly a novel study. In the Grundrisse, Marx lays out the relationship between the different historical formations of property-relations and corresponding forms of political association to

demonstrate that it is with the advent of private-property that the totality of social life is split into the duality of private and public selves (Marx, 1973, 486; Marx, 1975, 222; see Neocleous, 2002,). In many respects, Jurgen Habermas’ seminal work The Structural Transformation of the Public Sphere reworks Marx’s insight. Habermas locates the formation of private life and, therein, the bourgeois public sphere in the “social precondition...[of] a market that, tending to be liberalized made the affairs in the sphere of social reproduction as much as possible a matter of private people” (1991, 74). To this

end, the duality of private and public life is the product of a capitalist market with a form of state

authority that exists to guarantee this private life with the liberal political virtue of “freedom”: freedom of movement, of trade, and of conscience. While Habermas’s study effectively links capitalist development to the formation of private life, the relation of private life to security projects remains underdeveloped. In fact, taking private life as the space where liberal freedoms are articulated autonomously through the ‘free space’ of civil society ignores the logics of security in capitalist society. Thus, it can be argued that adopting Habermas’ view leaves us vulnerable to falling back on the contradictory position of privacy as a relation that is both threatened by and regulative of, security. We can perhaps move past this contradictory perception of privacy by trying to think through privacy in relation to security and capitalist production. What is, then, the relation of security to capital? No doubt any answer to this question will be partial. Nevertheless it is useful to open this question by noting that Marx declared “security the supreme social concept of civil society; the concept of police” (1975, 43). To this end, Marx’s reasoning behind this appears to be that the concept of security not only ensures egoism but that the only “bond between men is natural necessity, need and private interest, the preservation of their property” (1975, 43). If we take a liberal perspective, the matter is settled: security exists to guarantee the supremacy of the individual in their private life so that they may in turn pursue their own private interests; thus, security does not serve capital but private individuals who express themselves in what happens to be capitalist society (see Von Mises 1962, 68). But, to take this position is to overlook Marx’s further insight that private life in capitalist society is nothing

more than an abstraction (Marx, 1978, 22). Private-life, its mode of articulation and form of existence is nothing more than abstract reflection of real relations between private-property . Thus, security ensures the liberty to buy and sell labour, the freedom of mobility, freedom of conscience. More broadly put, it ensures the “separation of man from man” and does so in the course of solidifying and entrenching the social relations that stand behind these freedoms: the relations of private property (Marx, 1978, 46). Not only has this point been well established (see Rigakos, and Hadden 2001; Rigakos 2011; Neocleous 2007) but, further still, as the guarantee of private property first and the freedom of the liberal subject second, security perpetually determines and conditions liberty (Neocleous, 2007)3.

The state functions as a silent dictatorship it maintains through the false rouse of liberty and privacy to maintain order and supress rebellionAaron Henry 13, PhD candidate at Carleton University reading Sociology and Political Economy, ‘THE PERPETUAL OBJECT OF REGULATION: PRIVACY AS PACIFICATION”, The Journal of the Society for Socialist Studies, Winter 2013, pg 98-99

Hobbes’ attempt to partition forms of activity into the categories of ‘politicall’ and ‘private’ is noteworthy for several reasons. First, as other scholars have noted, the ‘private’ as a sphere of activity remained for much of the sixteenth and seventeenth centuries indistinct from the state of being secret (see Abizadeh, 2013, Neocleous, 2002; Sennett, 1974). In this sense, rather than positing private as a state of being concealed, hidden or solidary from others (the terms that had been applied to both privacy and secrecy) Hobbes links the act of being in private to a certain form of association other than that of forms of association posited by the commonwealth . Thus, private life and privacy is foregrounded in Hobbes not as a condition of visibility or boundaries of the home – which is for Hobbes the state of secrecy5 – but in terms of whether the interest of the individuals involved are ‘apart’ or separate from organizations and associations that are representations or subordinate elements of the sovereign . What makes this distinction all the more intriguing is that Hobbes arrives at it after outlining the relation of ‘particular’ (that is, ‘private’) liberty and the security and liberty of the sovereign. It is the role of the sovereign to provide security and public defense to all subjects . As such, the subject’s liberty exists only in activities and relations that “the sovereign hath permitted ” (Hobbes, 1968, [1651], 264). To this end, Hobbes is quite explicit about the forms of activity that are permitted: “the liberty to buy and sell and otherwise contract with one another, to choose their own abode, their own diet, their own trade of life and institute their children as they themselves think fit and the like” (Hobbes, 1968, 264). This liberty, though, is permitted precisely because the liberty (liberty defined by Hobbes as the absence of “external opposition”) does not abolish or limit “the sovereign power of life and death” (Hobbes, 1968, 264). Rather, the existence of this form of liberty of ‘particular men’, the freedom to engage in

a private trade or calling, is the product of the security provided by the sovereign, the guarantee of the publique sword and its role in the defense of private men (Hobbes, 1968 386). Furthermore, that there exists inheritance, the propriety of goods or land for private individuals, is not the product of private liberty particular to each man but is, rather a product of the limitation of this liberty by the sovereign’s provision of security (Hobbes, 1968 266). There are a few points I want to draw from here.

AT: Link Turns

Privacy = Property

Privacy presupposes and supports private property more generally - Sebastian Sevignani ’12 Unified Theory of Information Research Group “The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora” tripleC 10(2): 600-617, 2012

A resemblance between privacy and property is often noted in the literature (Lyon 1994, 186; Laudon 1996, 93; Brenkert 1979, 126; Habermas 1991, 74; Goldring 1984, 308f.; Lessig 2002, 250; Hettinger 1989, 45; Geuss 2001, 103; Sofsky 2007, 95f.; Solove 2008, 26-28; Moore 2008, 420; Kang 1998; Litman 2000; Westin 1967, 324-325; Varian 1997; Samuelson 2000), but has rarely been analysed critically (exception: Fuchs 2011b). A broad notion that expresses its fundamental character for human life and fits in with various kinds of property, understands property as a social relation with regard to (tangible and/or intangi- ble) things (Pedersen 2010c). Macpherson speaks about three possible forms: private property, state property, and common property. He points out that private property and state property are of similar structure, since in both the social relation with regard to things is exclusionary (Macpherson 1978, 5). Macpherson further remarks upon three shifts in the property notion, which took place when capitalism and market society appeared (Macpherson 1978, 9f.). These shifts include rele- vant – and, as we shall see, ideological – identifications: private property, based on a relation of exclusion, is taken for property as such; property in the consumable means of life is identified with property in producing these means of life; and property in producing the means of life is identified with a specific property in producing the means of life, namely property of the labour force. These shifts are not arbitrary; rather,

Macpherson argues that they are needed by market society and capitalism (Macpherson 1978, 9). Nowadays, private property is commonly associated with four aspects: the right to use, to abuse, to alienate or exchange something, as well as the right to re- ceive the fruits that the usage of something generates (Munzer 2005, 858). Private property can be or probably has always been constrained by state or society (Christman 1996). However, “it may be called an absolute right in two senses: it is a right to dispose of, or alienate, as well as to use; and it is a right

which is not conditional on the owner’s performance of any social function” (Mac- pherson 1978, 10). A relation of exclusion lies behind privacy as well as in the case of private property. I will now point to some similarities between both concepts on a phenomenological level. In the next section, the resemblance is then explored more systematically using Marxian theory. Most often, privacy is defined as an individual’s right against others and society (ensuring nega-

tive freedom), so one may conclude that an opposition against ‘the common’ lies behind the privacy discourse. In the age of the Internet, “just as the individual concerned about privacy wants to con- trol who gets access to what and when, the copyright holder wants to control who get access to what and when” (Lessig 2002, 250). Consequently, there is much discussion about how, on the one hand, to understand, justify, and criticize intangible private property, and on the other hand, to

analyse, welcome, or mourn the blurring between the public and private realm online (with respect to SNS: boyd 2007). Further similarities between privacy and private property can be found in their dependence on people’s class status (Goldring 1984, 313; Papacharissi 2010). It makes an im- portant difference if one has private property only in things that one needs for life, or if one has much more private property than he or she needs for life. There are rich private property owners who possess far more housing space than they can ever use. On the other hand, there are poor private property owners, being on welfare, who only possess their labour power. In terms of privacy, there are, for instance, people who rely on sharing the flat with other people that brings along several constraints in temporarily withdrawing from other people, or they may be forced to report their whole private life to state authorities (Gilliom 2001). However, there are people who have far more privacy. For instance, people who live in castles are well protected from any unappreciated intrusions, be they from other people, noise, or anything else. These people may be able to cir- cumvent reporting their financial status to state authorities, using the law effectively

on their behalf by means of tax and investment consultants. As much as private property, privacy is also good for different things depending on one’s class status. In capitalism, all people rely on having private property in order to satisfy their material and cultural needs. For the rich and powerful, private property ensures that they have the right to own the means of production and use them for their own purpose. For the poor, private property

is essential because only via private property can they reproduce their labour power and ensure that they will make ends meet. In capitalism, all humans also rely on having privacy in order to be competitive within a society that forces them to compete, and at the same time to allow for spaces of escape from that competition (Geuss 2001, 88). Rich and powerful people’s call for privacy is not only about individuation, but moreover about

ensuring the sanctity of their wealth while hiding its origin (one thinks of bank secrecy, for instance). The poorer people also call for privacy in order to protect their lives against overexploitation and other forms of powerful abuse by the rich (Demirovic 2004). Not surprisingly, we know of theories that draw consequences from the outlined close connec- tion between the individualistic control theory of privacy and private property by conceptualising the right to privacy as a right to property (Laudon 1996, 93; Lessig 2002; Kang 1998; Varian 1997). Property, according to the previously outlined identifying processes, is for these authors always to be understood as private property. Privacy as property would strengthen the individual control of personal data (Laudon 1996, 93; 97) and would prevent privacy invasions that occur when person- al data is accessed non-consensually

(Laudon 1996, 99). The “privacy as property”-approach demands that “everyone possesses information about themselves that would be valuable under some circumstances to others for commercial purposes. Everyone possesses his or her own reputation and data image. In this sense, basing privacy on the value of one’s name is egalitarian. Even the poor possess their identity. In the current regime of privacy protection, not even the wealthy can protect their personal information” (Laudon 1996, 102). Admittedly, with other political implications in mind, Lessig says, in the context of privacy as property, that “property talk [...] would strengthen the rhetorical force behind privacy” (Lessig 2002, 247). If privacy is property, then it becomes pos- sible to speak about theft regarding the non-consensual usage of personal data (Lessig 2002, 255).

Endorsing privacy requires endorsing private property – the two concepts mutually rely on each otherSebastian Sevignani ’12 Unified Theory of Information Research Group “The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora” tripleC 10(2): 600-617, 2012

By employing Marx’s theory, I have thus far shown that the properties of the dominant privacy notion – competitive individualism, exclusive control, exchangeable private property – have their very origin in the commodity exchange. The commodity exchange hides human sociality. Value appears as property of things and not as a social relation. Hence, it is important to own things for realising their value. But sociality asserts itself behind people’s back and establishes pressures to perform that are not controlled by the individuals. They perceive themselves as competitors. C.B. Macpherson (1962) detected the great influence of the outlined objective forms of thought within the most influential philosophical and political thinking, from Hobbes to Locke, and labelled it “possessive individualism”. Possessive individualism denotes a kind of thinking and a social prac- tice. Within capitalism it is useful and necessary that the individual perceives herself or himself as essentially “the proprietor of his own person and capacities, for which he owes nothing to society” (Macpherson, 1962, 263) and enters “into self-interested relations with other individuals” (Macpher- son 1962, 263). The value associated with privacy comes from these kinds of objective forms of thought. Admittedly, there has been much critique of this kind of privacy (Habermas 1991, 74; Lyon 1994, 186, 196; Etzioni 1999, 194), but for the evaluation of these critiques, it is important to keep in mind that privacy’s origin in possessive individualism is not arbitrary; rather, this style of privacy originates from material, capitalist practices. There are also several newer privacy theories that do not proceed from the liberal individualistic point of view (for instance: Solove 2008, 91-98); howev- er, the dominant mode of production in society remains bound to that point of view. We cannot simply define privacy differently without leaving social practices as they are.

Public/Private Dichotomy = UnstableThe distinction between public and private is unstableSusan Gal 02, Professor of Anthropology and Linguistics at the University of Chicago, “A Semiotics of the Public/Private Distinction”, Differences: A Journal of Feminist Cultural Studies, 2002, http://muse.jhu.edu/journals/differences/v013/13.1gal.html

In other cases, the public/private distinction is less fluid and more firmly institutionalized. In these cases, the institutions themselves show a fractal organization. Social science funding in the U.S. is a convenient example. There are public sources of social science funding and private ones: the U .S. federal government , say, versus the Ford Foundation. But within the U.S. government, there is once again a public/private distinction made, as the federal government distributes some of the money it spends on social scientific research through public organs such as the National Science Foundation but subcontracts other parts of that research money to private organizations such as the A merican Council for Learned Societies. In yet another fractal split, the acls also subcontracts some of its decision-making to scholars who work for federal agencies (e.g., the Wilson Center in Washington), so that there is clearly a "public sector" as well as a private one inside the supposedly private acls. Nevertheless, the differences between the acls and the nsf—despite the same original source of some of their money—are consequential, carrying different rules for eligibility, for evaluating proposals, and for disbursement. Thus, public funds get turned into private money at numerous sites, but usually through nested subdivisions. It would seem that one can always deny the "publicness" or "privateness" of the funds by focusing on a higher or lower level of organization . Much intraorganizational strategizing focuses on such matters. Importantly, there are subtle changes at each embedding; it is not entirely the "same" public and private at each subdivision. Rather, the definitions of public and private are partially transformed with each nested dichotom y —each indexical recalibration— while (deceptively) retaining the same label and the same co-constituting contrast. In all these examples of spaces, types of work, and institutions, there is no simple continuum of public to private. No funding agencies , for instance, are "more" public or "more " private . Each is one or the other, [End Page 83] by law. Nor are some forms of paid work "more" paid than others, though some are surely more lucrative. Here, as with the earlier example of bourgeois spaces, the issue is not one of unstable or fuzzy boundaries. Rather, the intertwining public and private is created by practices that participants understand as re-creations of the dichotomy. Yet, in part because these separations are indexical, participants can often collapse them into a single dichotomy, simplifying what is, in practice, complexly recursive.

Critique of state action is a necessary precondition to confronting the violations of the state via legal actionLarry Alexander 93, Professor of Law at the University of San Diego, “THE PUBLIC/PRIVATE DISTINCTION AND CONSTITUTIONAL LIMITS ON PRIVATE POWER” Constitutional Commentary, 1993, pg. 366

Take , for instance, the claim that the realm of family privacy is defined and supported by legal prohibitions and permissions , and that these legal prohibitions and permissions have important

effects, not only on family members, but also on public life.19 The claim is beyond cavil, but what follows from it? One thing that does not follow from it is that a legal regime that confers liberties and immunities on family members in order to create a zone of family privacy is, substantively speaking, constitutionally on a par with a regime of comprehensive regulation of acts within marriage. The former may be constitutionally compelled, which means the latter is constitutionally suspect. Nor does recognition that a legal regime of family privacy can have bad effects both for family members and for the public affect its constitutionally preferred status. All legal regimes regarding the family will have good and bad effects, and the question is which is most justifiable given constitutional values. That a regime is not perfect is not to say it is not justifiable or even best. Thus, the state action critique is valuable insofar as it prevents confusion that may affect the merits of a case . Flagg Brothers and Shelley v. Kraemerare two examples where conceptual confusion may have affected the merits. But important as it is, the conceptual point has no direct normative implications. The ubiquity of state action does not necessarily entail greater constitutional constraints on private decisionmakers.20

Despite the important it holds in our society, modernist critiques have given us insight into the flaws of the public-private dichotomy and how to begin to rebel against itJudith Squires 93, Writer at the Department of Politics at the University of Bristol England, “Private lives, secluded places: privacy as political Possibility”, Environment and Planning: Society and Space, Volume 12, October 5, 1993, pg. 388

I make this claim in recognition of the fact that the condition of postmodernity is characterised by forces that would erode many of the spaces and places in which privacy was previously grounded. Where there was distance we witness time-space compression; where there were boundaries we perceive transparency; where there was confidentiality we find information flows. These developments have been extensively theorised in the literature of cultural geographers, international relations theorists, and urban sociologists. Yet the implications of these developments have been theorised largely in terms of the restructuring of our public, not our private, spaces. The need to rejuvenate our public spaces, to engender public participation, to rethink our category of the public sphere, has been widely recognised within contemporary writings on the social and political implications of postmodernity. Yet on the issue of privacy there has been silence. Why should this be so? If privacy is the most comprehensive of all rights, one would expect the concept to be subject to intense theoretical scrutiny and debate; one would expect minimally—as with other key contemporary democratic values 388 J Squires such as liberty and equality—a plethora of arguments providing foundations for its

status, definitions of its precise formulation, and discussions of possible threats to its realisation. Perhaps the notion of privacy has for most of us been so long bound up with the (various) notion(s) of the private sphere that evaluation of the merits of privacy itself has been subsumed within the discourse on the public and private spheres. For those concerned to critique the particular historical formulation of the division of the spheres that grew up with patriarchal capitalist liberal society, privacy has been cast as a mystifying liberal rhetoric, used to justify the exclusion and silencing of all those denied access to the public sphere . Critiques of the public-private dichotomy have rightly exposed the hypocrisy and partiality of the separate spheres discourses . In this they have proved invaluable as theoretical preconditions for the dismantling of the oppressive structures of existin g public and private spheres . Interestingly, the global forces of changing practices of production and distribution have further worked to undermine the continued existence of the separate spheres in practice. In this context, it would seem that we are faced with both a grave threat and a great possibility. Our privacy is in many ways being eroded as a result of the open market's exploitation of new technologies of

communication and observation. Yet the notion of privacy can today finally be conceived and realized out with the unhelpful bifurcation of society into the bounded categories of public and private spheres. The condition of postmodernity therefore allows us, and requires us, to rethink not only the nature and import of our public, but also of our private spaces.

Despite our high value placed on privacy it is important that we reflect on it’s effect on that of the group/populationAmitai Etzioni 99, University Professor at the George Washington University, “The Limits of Privacy”, 1999, Basic Books (e-book), Pg 209-210

“Later authorities referred to privacy as an "inalienable right,"19 thereby denoting its powerful claim and trump standing. (Trumps are defined as "reasons that can be played against any and all ethical con- cerns."20) Indeed, as Justice Holmes stated: " Rights tend to declare themselves absolute to their logical extreme ."21 As the right to privacy is viewed as an inalienable right , it does not yield to the common good. "Moreover," William Lund observed, "any citizen who manages to get an interest wrapped in the cloak of a right appears to have an absolute claim against other considerations."22 Henkin has made the communitarian point that "consideration has focused on defining the private right of privacy, with little regard to our other balance, the competing `public good."' He added that although this lack of balance characterizes applications of the Bill of Rights generally, the public good has been given particularly short shrift in the area of pri- vacy. Moreover, there has been a strong tendency to treat privacy either as a cardinal element of autonomy (or liberty), or to treat these concepts as if they were synonymous with privacy, further extending the reverence for privacy. Charles Fried adds that "men feel that invasion of that right injures them in their very humanity," and in regard to respect, love, friendship, and trust, "without privacy they [respect, love, etc.] are simply inconceivable."24 “Others have claimed that privacy is intimately associated with our most profound values , our understanding of what it means to be an autonomous moral agent capable of self-reflection and choice, and that its violation is "demeaning to individuality [and] an affront to personal dignity," that is, its violation offends the core of Western values 25 Jean Cohen adds that "a constitutionally protected right to personal privacy is indispensable to any modern conception of freedom."26 “All of these arguments paint a picture of the right to privacy as an unmitigated good, at least as a strongly privileged value . Indeed, few individualists (a term used here to refer to civil libertarians, libertarians, classical liberals, and contemporary classical liberals) even broach the question of whether there can be excessive privacy. Avishai Margalit, for instance, simply states that "the institutions of a decent society must not encroach upon personal privacy," recognizing no principled situations in which the common good might require some limitations on privacy .27 Glen 0. Robinson points out that, in "controversies over regulating communities and community activities, most legal scholars and judges start with a [classical] liberal bias."28 This legal approach is particularly well summarized by Stanley I. Benn:

Impacts

Privacy Bad - Gender Violence/PatriarchyThe discourse of privacy and the glorification of the private systematically oppress women. Women have historically been confined to the private sphere and denied entry into the political sphere of the public. Buttressing privacy solidifies that masculinist character of the state

Wendy Brown ’92 Prof of Pol Sci at Berkeley, “Finding the man in the state” Feminist Studies18.1 (Spring 1992): 7.

The Liberal Dimension. Liberal ideology, legislation, and adjudication are predicated upon a division of the polity into the ostensibly autonomous spheres of family, civil society (economy), and state . In classical as well as much contemporary liberal discourse, the family is cast as the "natural" or divinely given -- thus prepolitical and ahistorical -- part of the human world. Civil society is also formulated as "natural" in the sense of arising out of "human nature," although the civility of civil society is acknowledged by liberal theorists to be politically "achieved" and it is also within civil society that the rights guaranteed by the (nonnatural) state are exercised. In classic liberal accounts, the state is the one conventional and hence fully malleable part of this tripartite arrangement; it is constructed both to protect citizens from external danger and to

guarantee the rights necessary for commodious commerce with one another. The problem with this discourse for women is familiar and has been extensively rehearsed by feminist political theorists such as Carole Pateman, Catharine

MacKinnon, Lorenne Clark, and Lynda Lange. First, because the family is cast as natural and prepolitical, so also is woman, the primary worker within and crucial signifier of the family, constructed in these terms. In this discourse, women are "naturally" suited for the family, the reproductive work women do is "natural," the family is a "natural" entity -- everywhere nature greets nature and the historical constructedness and plasticity of both women and the family is nowhere in sight. As the family is depoliticized, so is women's situation and women's work within it; recognized neither politically nor economically as

labor, this work has a discursively shadowy, invisible character.(19) Second, because much of women's work and life transpires in the "private" or familial realm, women's involvement with the place where rights are conferred and exercised -- civil society -- is substantially limited by comparison with men. Thus, even when women acquire civil rights, they acquire something that is at best partially relevant to their daily lives and the main domain of their unfreedom. Third, historically, the "private sphere" is not actually a realm of privacy for women insofar as it is a place of nearly unlimited access to a woman by her husband and children. "Privacy is everything women...have never been allowed to have; at the same time the private is everything women have been equated with and defined in terms of men's ability to have."(20) Insofar as it arises as a realm of privacy from

other men for men, the private sphere may be the last place on earth women experience either privacy or safety -- hence the feminist longing for a "room of one's own" within men's "haven in a heartless world." For the most part, rights do not apply in this sphere; rather this realm is formally governed by norms of duty, love, and custom, and until quite recently, has been largely shielded from the reach of law. Indeed, the difficulties of establishing marital rape as rape, wife battering as battery, or child abuse as abuse, pertain, inter alia, to the liberal resistance to recognizing personhood inside the household; in the liberal formulation, persons are rights-bearing individuals pursuing their interests in civil society.(21) Thus James Tyrell in the seventeenth century, and Immanuel Kant and William Blackstone in the eighteenth, argued that it was reasonable for women to be "concluded" (politically represented) by their husbands because "women have no civil personality" -- they exist only as

members of households while personhood is achieved in civil society.(22) Within liberalism, the nonpersonhood of women, the extralegal status of household relations, and ontological association of both with nature are all mutually reinforcing. According to the origin myths of liberalism, men come out of the "state of nature" to

procure rights for themselves in society; they do not establish the state to protect or empower individuals inside families.(23) The relevance of this for contemporary analysis lies in its revelation of the masculinist perspective at the heart of the liberal formulation of political and civil rights: the liberal subject is a man who

moves freely between family and civil society, bearing prerogative in the former and rights in the latter. This person is male rather than generic because his enjoyment of his civil rights is buttressed rather than limited by his relations in the private sphere while the opposite is the case for women: within the standard sexual division of labor, women's access to civil society and its liberties is limited by household labor and responsibility. Liberalism's discursive construction of the "private" sphere as neither a realm of work nor of power but of nature, comfort, and regeneration is inherently bound to the male position in the private sphere and parallels the privileging of class entailed in bourgeois characterizations of civil society as a place of universal freedom and equality. One problem with liberal state power for women, then, is that those persons recognized and granted

rights by the state are walking freely about civil society, not contained in the family. Women doing primary labor and achieving primary identity inside the family are thus inherently constrained in their prospects for recognition as persons insofar as they lack the stuff of liberal personhood -- legal, economic, or "civil personality." They are derivative of their households and husbands, subsumed in identity to their maternal activity as mothers, sequestered from the place where rights are exercised, wages are earned, and political power is wielded. Moreover,

because the liberal state does not recognize the family as a political entity or reproduction as a social

relation, women's situation as unpaid workers within the family is depoliticized. Finally, although women have now been accorded roughly the same panoply of civil and political rights accorded men, these rights are of more limited use to most women and have different substantive meaning in women's lives. It is as gratuitous to dwell upon an impoverished single mother's freedom to pursue her own individual interests in society as it is to carry on about the private property rights of the homeless. This last point raises a final consideration about the liberal state's maleness, one suggested by the work of thinkers as diverse and respectively problematic as Carol Gilligan and Luce Irigaray.(24) The liberal subject -- the abstract individual constituted and addressed by liberal political and legal codes -- may be masculine not only because his primary domain of operations is civil society rather than the family, but because he is presumed to be morally if not ontologically oriented toward autonomy, autarky, and individual power. Gilligan's work suggests that social constructions of gender in this culture produce women who do not think or act like liberal subjects, that is, in terms of abstract rights and duties. For Gilligan, insofar as women develop much of their thinking and codes of action within and for the comparatively nonliberal domain of the family, relationships and needs rather than self-interest and rights comprise the basis for female identity formation and decision-making processes. Although Irigaray moves in the domain of psychoanalysis rather than empirical social science, her insistence that "the subject is always masculine" is predicated upon a convergent account of the repudiation of dependency entailed in the psychic construction of the male subject. Incorporation of selected insights from these thinkers is not meant to suggest that there is something essentially masculine about the liberal subject or state; supplementing either the psychoanalytic or empirical accounts with historical, cultural, and political-economic components, one could plausibly argue that liberal discourse and practices are the basis for the social construction of bourgeois masculinity rather than the other way around. But causation is a poor analytical modality for appreciating the genealogical relationship between masculinity and liberalism, a relationship which is complexly interconstitutive, or better, interconstructive. One effect of this genealogy is that the liberal state not only adjudicates for subjects whose primary activities transpire in civil society rather than the family, but it does so in a discourse featuring and buttressing the interests of individualistic men against the mandatory relational situation of women

situated in sequestered domains of caretaking. Similarly, not only does the liberal state grant men access to women in the private sphere by marking the private sphere as a rightless realm largely beyond the state's purview, it requires that women enter civil society on socially male terms . Recognition as liberal subjects requires that women abstract from their daily lives in the household and repudiate or transcend the social construction of femaleness consequent to this dailiness, requirements which in addition to being normatively problematic, are -- as

every working woman knows -- never fully realizable. Thus, not merely the structure and discourse but the ethos of the liberal state appears to be socially masculine: its discursive currencies are rights rather than needs, individuals rather than relations, autogenesis rather than interdependence, interests rather than shared circumstances.

Privacy Bad – RacismThe state’s use of the public/private distinction and the invocation of the constitution as means of safeguarding their actions merely just a façade meant to hide institutional racismGregory P. Magarian 04, professor of law at Villanova University, “The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate”, The George Washington Law Review, Volume 73 No. 1, November 2004, pg. 139-141

Legal realists and their inheritors in the critical legal studies movement have advanced this ideological critique in economic terms. Aiming at the heart of the traditionally conceptualized private sphere, these critics have emphasized the structures of coercion and domination inherent in the supposedly nongovernmental domains of property and contract. They emphasize the historical development of the public-private distinction as an advanced capitalist legal device to safeguard private transactions from redistributive initiatives, which may be framed as constitutional rights claims.260 Karl Klare's exhaustive survey of labor law doctrine leads him to conclude that the public-private distinction as applied to labor disputes serves "the effort to induce the belief that workers should be denied power and participation in industrial life. '261 Given the Court's repeated tendency to invoke the state action doctrine to shield such institutions as utilities, bailees, and medical facilities2 64 from constitutional liability , commentators emphasize how the distinction aids powerful institutions in fending off rights claims brought by individuals.265 In short, the state action doctrine safeguards the status quo. Invocations of the state action doctrine to block constitutional claims have often provided cover for institutionalized racism.2 66 Professor Black maintained near the height of the civil rights era that the state action doctrine served only that purpose.2 6 7 Although almost all of the Supreme Court decisions that have appreciably expanded the scope of " state action " rebuffed acts of discrimination against African Americans , 68 critical scholars have demonstrated that systems of private ordering continue to disadvantage African American s and other minority groups by insulating oppressive features of the status quo from legal challenge. 269 Critical race theory posits that limiting constitutional protections to the public sphere makes no sense in a society that disadvantages people of color in most other aspects of life. Dividing the world into public and private spheres forces' constitutional challengers to overcome a putatively " common sense" distinction that actually owes its status to past judicial decisions . 27 ' The state action doctrine acts as a shield, allowing courts to avoid balancing underlying constitutional interests.2 72 Furthermore, critical race theorists contend that the denial of a private cause of action based on equal protection grounds, combined with the protection of other constitutional provisions primarily due process and First Amendment protections creates a "private right to discriminate. 2 73 Not only does this right legitimate private discrimination, it hinders passage of antidiscrimination legislation in areas such as economic relations.274 Finally, critical race theorists emphasize the realist insight that governmental facilitation and protection of discriminatory conduct amounts to a higher level of state action that the courts have still refused to recognize.

Neoliberalism bad - Mass IncarcerationNeoliberalism’s logic allows for a broader scope of criminality by redirecting government intervention from the marketplace to the penal sphere causing mass incarcerationBernard E. Harcourt 08, Isidor and Seville Sulzbacher Professor of Law at Columbia University, October 2, 2008, “Neoliberal Penality: The Birth of Natural Order, the Illusion of Free Markets,” http://poseidon01.ssrn.com/delivery.php?ID=470002118005101071113021099093109092096075037082045007068102010085117007006092010029013055021115109098101084094027014081089031055058036076048086115016106025091107065006017091029088029012124086010095079090087069112005026112081103119092074122066084&EXT=pdf&TYPE=2

The new discourse of neoliberal penality facilitates the growth of the penal sphere. It makes it easier to resist government intervention in the marketplace and to embrace criminalizing any and all deviations from the market. It facilitates passing new criminal statutes and wielding the penal sanction more liberally—because that is where administration is necessary; that is where the state can legitimately act; that is the proper sphere of policing. In other words, the neoliberal vision not only goes hand-in-hand with a certain way of perceiving markets and history—of believing, for instance, that the early markets of the eighteenth century were regulated excessively and that ours today are free. It also facilitates the growth of the penal sphere. By

marginalizing and pushing punishment to the outskirts of the market, the neoliberal discourse fertilizes the penal sphere.

Modern penal practices in the West are consistent with this, though I must emphasize that my intention is neither to make, nor to demonstrate a causal empirical link. The size and the cost of our neoliberal penal sphere in the West far

exceeds those of earlier periods.117 In the United States, for instance, the twentieth century experienced very high rates and costs of institutionalization—in both prisons and asylums. Prison populations skyrocketed beginning in 1970, rising from under 200,000 persons to more than 1.3 million in 2002. That year, our prison rate surpassed for the first time the 600 mark—600 inmates per 100,000 adults. Including inmates in jail, the incarcerated population exceeded two million in 2001. In the 1930s, 40s and 50s, the United States also institutionalized people at high rates, but in state and county mental hospitals, institutions for “mental defectives and epileptics” and “the mentally retarded,” psychiatric wards in VA hospitals, as well as “psychopathic,” city, and private mental hospitals. When the data on these mental institutions are combined with the data on prison rates for 1928 through 2000, the rates of overall institutionalization in this country are staggering: in the period between 1935 and 1963, the United States consistently institutionalized (in mental institutions and prisons) at rates above 700 per 100,000 adults—with highs of 778 in 1939 and 786 in 1955.

In 2001, the fifty states spent a combined $38 billion on prisons alone.118 These numbers continue to rise sharply. California's annual prison budget for 2007-08 was almost $10 billion dollars in 2007, nearly twice as large as it was in 2001.119 For many states, the annual budget allocates more funding for prisons than for education.120 The numbers are often staggering. According to a study released by the Department of Justice in 2004:

Correctional authorities spent $38.2 billion to maintain the Nation’s State correctional systems in fiscal year 2001, including $29.5 billion specifically for adult correctional facilities. Day-to- day operating expenses totaled $28.4 billion, and capital outlays for land, new building, and renovations, $1.1 billion. The average annual operating cost per State inmate in 2001 was $22,650, or $62.05 per day. Among facilities operated by the Federal Bureau of Prisons, it was $22,632 per inmate, or $62.01 per day.121

With about one percent of the adult population in the United States behind bars, the size and cost of our penal sphere is

undoubtedly greater than it was in earlier periods. And by “penal sphere,” I do not mean to create or reify a new category. I only mean to denote the costs and human capital associated with the criminal sanction. Those costs and that human capital are exceedingly large. This is consistent with the neoliberal penal

vision: we are far more willing to spend dollars and allow the state to intervene in the penal sphere than we are in education or elsewhere, because that is where the government has a legitimate role. The federal bailouts of 2008 represent an exception to this logic;122 but they are exceptional and, in that sense, they prove the rule. Both sides of the political spectrum view the bailouts as “outrageous,” though necessary in a time of crisis to boost public confidence in the financial markets and ensure the continuing flow of credit to American homeowners.123 Most believe that the bailouts are temporary measures that will be followed by a return to normal. Even the New York Times editorial page assumes, for instance, that the nationalized Fannie and Freddie enterprises will eventually be privatized again.124

I must emphasize that I am not making a causal claim. I do not contend that it is the discourse of neoliberalism that has fueled thegrowth of our prison populations. It is not the logic that has caused mass incarceration; the war on drugs, the embrace of selective incapacitation theory, mandatory minimum sentences, and other practices are directly responsible for the exponential growth of our prisons, as other factors were directly responsible for the expansion of asylums and institutions for “the mentally defective.” My point, instead, is that the logic of neoliberalism facilitates these punishment practices by encouraging the belief that the legitimate space for government intervention is in the penal sphere—and there alone. The empirical evidence is at least consistent with this genealogy and does not, straight out, nullify the hypothesis.

Neoliberalism fuels the criminal justice system which targets and incarcerates poor minorities—justification is found through the belief that marginalization is due to inherent moral and economic inferiorityMartha T. McCluskey 10, Professor of Constitutional Law and Economics at State University of New York Law School, 2010, “From the Welfare State to the Militarized Market,” http://poseidon01.ssrn.com/delivery.php?ID=9861191030220721030920150761070090220080230300350910560911160210640040310781260751170260350130440391110070121070180880000080170070070000160921070070310720000880760050490491140741190931050670

Within the United States, criminalization has long been used to control those whose occasional market winnings have been contrary to the moral order. The combined rise of market and moral ideology constructing poverty as the result of bad choices has helped to rationalize the growth of government control over those whose winnings threaten to undermine the gains of market elites. In the 1980s and 1990s, new policies of mass incarceration placed large numbers of poor people of color under militarized control, often for participating in the illegal drug market in the absence of better alternatives for jobs or family care. In addition, this growth of the criminal justice industry increased economic and political pressure on government to further divert government spending from social support for better choices to authoritarian control of choice. This criminalization of poverty has contributed to an escalating system of public and private violence in poor communities. Incarceration leaves many families and communities without access to support necessary for legitimate market success, thereby encouraging further dependence on violent gangs and illegal activity.

In addition to incarceration, the withdrawal of welfare support for poor mothers has subjected many poor families of color to the public control of the child welfare system, as children subject to unsafe communities and poverty are removed to the sometimes violent and often inadequately supported foster care system. Criminalization and militarization of immigration, combined with neoliberal policies driving many outside the United States to illegal migration

and many employers within the United States to rely on cheaper or more vulnerable immigrant labor, has meant that work opportunities often lead to state detention and policing along with private denial of rights.

These policies of force and insecurity can nonetheless appear as beacons of freedom and opportunity through an ideological lens that dismisses and justifies this force and devastation as marginal or temporary side effects to those whose failures prove their moral and economic inferiority. In contrast, decreased policing and decriminalization of unlawful cost-shifting by powerful economic winners is excused by market and moral ideology romanticizing their gains as a sign of superior power, or rationalized as the inevitable price of encouraging entrepreneurial risk-taking and ambition that will lead to long-term prosperity.

Neoliberalism increases the penal sphere by incarcerating those worst affected by the social inequality neoliberalism causesLoïc Wacquant 10, Professor of Sociology at UC Berkeley, May 23, 2010, “Crafting the Neoliberal State: Workfare, Prisonfare, and Social Insecurity,” Sociological Forum 25-2, http://onlinelibrary.wiley.com/doi/10.1111/j.1573-7861.2010.01173.x/full

Indeed, the second thesis advanced by Punishing the Poor is that the ongoing capitalist “revolution from above,” commonly called

neoliberalism, entails the enlargement and exaltation of the penal sector of the bureaucratic field, so that the state may check the social reverberations caused by the diffusion of social insecurity in the lower rungs of the class and ethnic hierarchy as well as assuage popular discontent over the dereliction of its traditional economic and social duties. Neoliberalism readily resolves what for Garland’s “culture of control” remains an enigmatic paradox of late modernity, namely, the fact that “control is now being re-emphasized in every area of social life—with the singular and startling exception of the economy, from whose

deregulated domain most of today’s major risks routinely emerge” (Garland, 2001:165, emphasis supplied). The neoliberal remaking of the state also explains the steep class, ethnoracial, and spatial bias stamping the simultaneous retraction of its social bosom and expansion of its penal fist: the populations most directly and adversely impacted by the convergent revamping of the labor market and public aid turn out also to be the privileged “beneficiaries” of the penal largesse of the authorities. This is true in the United States where the carceral boom has corralled (sub)proletarian blacks trapped in the bare hyperghetto. It is also the case in Western Europe, where the primary clientele of the expanding prison is composed of precarious workers and the unemployed, postcolonial migrants, and lower-class addicts and derelicts ( Wacquant, 2009b:87–102 ).

Neoliberalism bad - RacismNeoliberalism perpetuates racism—all people are categorized as consumers and market ideology ignores persistent racial disparityDana-Ain Davis 07, Associate Professor of Anthropology at CUNY, December 18, 2007, “Narrating the Mute: Racializing and Racism in a Neoliberal Moment,” Souls: A Critical Journal of Black Politics, Culture, and Society 9-4, http://www.tandfonline.com/doi/full/10.1080/10999940701703810#abstract

Yet, I would argue that there is much more than the reverence of free market principles in the articulation and coordination of neoliberalism. Neoliberalist practices pull into its orbit a market of ideas about a lot of things including the family, gender and racial ideology. It is, as Lisa Duggan ( 2003 ) notes, “saturated with race” (xvi) using capitalism to hide racial (and other) inequalities by relocating racially coded economic disadvantage and reassigning identity-based biases to the private and personal spheres. This achievement is made viable by absolving the government from its role in the intervention and management of racial disparities. Even more than being saturated with race, neoliberalism also modifies race (Giroux 2005) as it forces the hand of race-blindness by insisting that race is unimportant. Further racial discrimination can be resolved simply by having citizens enter the workforce. Racism is modified by perpetuating the belief that it is incoherent and is not

a real feature of contemporary life. Of course what neoliberalism doesn't do is pay attention to the ways that race matters, for example, in occupational and economic attainment (Pager 2002 ).

Within this context race lacks substance because in order to operate effectively, neoliberalism rejects identity. A free market ideology in the United States endows and embraces both race-blindness and a post-Black framing as correctives to historically articulated racial exclusions and subordinations. For example, race-based barriers have historically restricted occupational choices. One corrective was

affirmative action. Contemporarily, in the free-market, restricted occupational choices are attributed to lack of qualification, not to systemic barriers. The rising tide of neoliberal pride surfs on a proximity to views of racial progress—distorted though they may be—at the same time that race is disallowed as legitimate political grievance and a legitimate consideration in policy-making. Consequently the use of racial justice remedies to address inequality have been reined in. Much of this pride is rooted in

a dominant racial discourse that posits race-blindness, which is related to what I call a post-race/post-Black view. 8 This perspective offers a liberated zone from race and racial identity (Stodghill 2001), a stark contrast to modernity's project which, according to Winant (2001) and others, has been a racial project enabled in the process of nation-state

building and expansionism. 9 What neoliberalism has done with race is condoned a pseudo “racial emancipation,” provoked by several factors, the list being neither exhaustive, nor prioritized. First, in the popular sphere, the last two generations have approached issues of racial identity with greater flexibility (Walker 2002; Rockquemore and Brunsma 2001) questioning its very meaning along with the boundaries of objectivity and categorization. Second, demographic shifts have led to a precipitous increase in the United States' multiethnic composition. 10 These shifts have fostered a diversity agenda which undermines addressing the issue of racism. Third, social and natural scientists have challenged the certitude of biological race, and rightly so, positioning it in constructivist terms (Haney-Lopez 1994; Baker1998). One ironic consequence has been a conservative and liberal drift away from accepting race-based claims as relevant. A fourth contributing factor to the post-race/post-Black position is that racial inequality (race being a social construction in any case) has been diminished by the elimination of legal and political rights tied to racial status (Haney-Lopez 1997; Cashmore and Jennings 2002). Finally, the eradication of “extreme” forms of unsanctioned racism, like lynching, serves as “proof” that racism no longer exists. 11

In the final analysis race, racializing, and racism in the United States have succumbed to actual, legal and societal changes in racial arrangements whereby race and race-based grievances have lost both their logic and potency (D'Souza 1996 ). Essentially, the post-race/post-Black position narrates the

possibility of erasure. 12 Within this potential erasure neoliberalism plays a perverted race card, in that

by rejecting race, formerly racialized “others” can be fully incorporated as consumptive citizens with no racial barriers to their participation in the economy. Neoliberalism, then, willfully misconstrues and dismisses the reality of racism as a powerful explanatory factor in analyzing persistent racial inequities.

Neoliberalism’s demand for minimal government allows considerations of race to be disregarded, allowing racism to propogateDavid Theo Goldbery 09, Director of UC Humanities Research Institute, February 18, 2009, “The Threat of Race: Reflections on Racial Neoliberalism,” pp. 338-339, http://onlinelibrary.wiley.com/store/10.1002/9781444304695.ch8/asset/ch8.pdf?v=1&t=ibsm7yoi&s=d8b9cb1f068ccc906aa4323b5f8745524c0295e3

I am suggesting accordingly that race is a key structuring technology not just of modern state formation but also more contemporarily of neoliberalism as the driving condition of late modern capitalist state formation. Neoliberalism, as I have been elaborating it here, represents the shift from the caretaker or pastoral state of welfare capitalism to the “traffic cop” or “minimal” state, ordering flows of capital, people, goods, public services, and information.

In diluting, if not erasing, race in all public affairs of the state, neoliberal proponents nevertheless seek to privatize racisms alongside most everything else. They seek, that is, to protect preference determination and expression behind a wall of privacy, untouchable by state intervention, the outcome of which is to privatize race-based exclusions. Categories of race disappear as much from keeping account of discrimination as from producing the discrimination itself, thus leaving the condition it is supposed to articulate, to mark and express as well as identify and assess, as untouchable as it tends now to be untouched. Devoid of race in the public sphere, racism – as modes of racially driven subjection and exclusion, debilitation and humiliation – is freed up to circulate as robustly as individuals or non-government (or non-government-funded) institutions should choose in private.

Neoliberalism confines race as a concept to the private sphere hiding the possibility of institutional racism and allowing it to continueDavid Theo Goldbery 09, Director of UC Humanities Research Institute, February 18, 2009, “The Threat of Race: Reflections on Racial Neoliberalism,” pp. 362-363, http://onlinelibrary.wiley.com/store/10.1002/9781444304695.ch8/asset/ch8.pdf?v=1&t=ibsm7yoi&s=d8b9cb1f068ccc906aa4323b5f8745524c0295e3

Racisms without racism, then, is the peculiar expression of neoliberalizing globalization. It is the

way of governing distinction, in the global scheme of enduring freedom, considered too different and difficult to deal with. It is the (re-)institutionalizing of racism gone private, the privatizing of institutionalized racisms. Racisms cut off from their historical fertilizer. Racisms born again, renewed. But shorn of the referential language. The wolf in sheep’s clothing, speaking of sheep while deeply ambivalent about defanging the wolf. They are political expressions unrecognized as free because driven by forces outside of themselves, illegible to those external to its circles of persuasion. At worst, beastly violence against the inevitable advance of freedom and democracy.

The consequent counter-violence of containments cannot possibly be racist not just because no races exist but also because the threatening expressions it seeks to contain are unrecognized as properly human. It – the projected action as metonym for the

person, for the (national) character – is beastly, monstrous, mutant, after all. It places itself outside the bundle of legitimate human preference expression or instrumentalization. As such, we can’t be racist just as we don’t torture. Even as a bad apple, even two

perhaps do. The individualization of wrongdoing, its localization as personal and so private preference expression, erases institutional racisms precisely as conceptual possibility. The bad faith of deniability is dismissed as the demands of ensuring the necessary flows of worldly commerce, the possibility of global liberties, the stabilizing of securities. Apartheid was state racism’s last word, the closing act of racism’s institutionalization. Nothing left to it but the individual variety of a few rogues in the private sphere.

The curtaining off of the racial from the public domain, from the formal sphere of politics, and restricting it to the privacy of occasional individual choice and (self-)determination make race and by extension the effects it produces as racist discrimination and exclusion matters of personal morality rather than public law. Race is rendered accordingly before, beneath, or beyond the law. The racial dimensions of crime, social practice, and ultimately state action (from profiling to genocides) are cordoned off-limits to the law. They may be moral or ethical matters, as Agamben puts it, tied ineluctably to the private choices of individual preference. They accordingly are not issues of legal responsibility. As strictly and reductively moral matters, racist acts and institutional patterns or effects are less likely to be prosecuted by the law; they are regarded as personally offensive, morals offenses, more like pornography than injurious. Even “hate crimes” are crimes exacerbated by hate, recognized as crimes first and accentuated by a condition that makes the matter

worse, the potential sentence longer. The personalization of hate is an add-on, a legislative after-thought, institutionalizing a matter that on the premise ought not to be but just won’t quite go away. These are the awkwardnesses, the inconsistencies, produced ultimately by restricting racist expression to the private sphere.

Neoliberalism becomes a racialized process as the continued practice of whiteness justifies the racist implications Sally Davison, Director of Lawrence and Wishart and Co-editor of Soundings, and George Shire, member of the Soundings editorial board, 2/13/2015, “Race, migration and neoliberalism: how neoliberalism benefits from discourses of exclusion,” http://www.lwbooks.co.uk/journals/soundings/pdfs/s59_davison_shire.pdf

Though theories of the market, neoliberal or otherwise, are not themselves racialised (not least

since they deal in inputs of labour rather than human beings), the functioning of the contemporary global economy is deeply embedded in the histories and practices of racism. The operations of the market are always underpinned by unequal power structures; and the maintenance as far as possible of unequal global power relations has

been a key concern of the global elite throughout the postcolonial period. The continuance of a dominant common sense of the whiteness of power as natural--including who is entitled to intervene internationally and which societies best embody a specific normative set of western values--has been a crucial part of securing consent for these unequal relations. (4)

Common-sense ideas about British and/or western values have much to contribute here. For example western ways of fighting are regarded as much more civilised than those of jihadis: death by drone is seen as a more modern means of despatch than beheading . Similarly, lack of democracy is more acceptable (often invisible) when it is part of the British story: thus, for example, the complete absence of democracy under British rule in Hong Kong is forgotten in the current debate about the lack of democracy under the People's Republic.

The way migration is discussed fits into the same hierarchy of entitlement. It is assumed that people from the rich west can go wherever they want, but the poor will by and large stay where they are. The supreme example of this one-way view of migration is the invisibility in much contemporary discussion of the mass European/white settler migrations of the nineteenth century, especially to North and South America, the Antipodes and Southern Africa, which led to the dispossession, subordination and sometimes

eradication of whole populations, with all the consequent inequality and violence that this has brought to the world. Today, as neoliberal capitalism spreads its grip across the globe in search of new sources of raw materials and new markets, it produces levels of dispossession and displacement even greater than those that caused the nineteenth-century emigrations. But for twenty-first century victims of capitalism's great destructive capacity, moving away for a better life follows a very different pattern. The movement of populations that has characterised the whole of the modern period is called into question when the periphery seeks to come to the centre.

There is of course no such thing as a pure market. Liberals may dream of the free movement of goods and people, but securing the conditions in which this can happen requires massive intervention and investment. This is why liberals and conservatives have so often ended up in coalition together. Through their uneasy alliance the necessary law and order is secured by the conservative/authoritarian/ populist wing to enable the liberals to pursue their free trade . The contradictions this involves are seen very clearly in debates on immigration. The lure of cheap labour has to be balanced against the

need to patch together the necessary alliances of populists and conservatives that will keep the system afloat. The ideas about race and nation that are submerged just beneath the surface of this debate--and which seek to hold together an alliance between the wealthy and a working class addressed in national rather than class terms--are usually unmentioned but are nevertheless present. In Britain the Liberal Democrats, unsurprisingly, are the strongest enthusiasts for liberal policies such as support for the EU and fewer controls on immigration, but in the Labour and Tory parties there are major divisions between conservatives and liberals (as there are indeed in most of the smaller parties).

Discourses of white/English/British superiority can thus be seen as a resource deployed to help secure cross-class alliances between disaffected sections of the working class and the authoritarian populist right. As well as helping to secure consent for western dominance at the global level, they therefore play a key role in domestic politics.

Neoliberalism bad - MilitarismNeoliberalism drives militarism and —as the wealthy become threatened by possible global competition, the government responds with military intervention and torture—empirics proveMartha T. McCluskey 10, Professor of Constitutional Law and Economics at State University of New York Law School, 2010, “From the Welfare State to the Militarized Market,” http://poseidon01.ssrn.com/delivery.php?ID=9861191030220721030920150761070090220080230300350910560911160210640040310781260751170260350130440391110070121070180880000080170070070000160921070070310720000880760050490491140741190931050670

As the U.S. economy, and its wealthy business owners and investors, became more threatened under global competition and increased nonelite political power in the 1960s and 1970s, the prevailing policy response has been not simply to win that competition by producing more and better economic goods, but to enlist militarism and government control to change the global and domestic rules of the game in the favor of the wealthy. As Chilean dictator Pinochet explained in a 1979 speech written by his "Chicago Boys" free market economic advisors, democracy is only an expendable means to the more important end of absolute economic freedom; or, as writer Eduardo Galeano observed, Pinochet was "torturing people so prices could be free" (Grandin 2006,175).

Historian Greg Grandin explains how free market ideology ironically helped promote a U.S. policy of heightened intervention through terror that brought mass poverty, violence, and dictatorship to much of Latin America during the late twentieth century (Grandin 2006). Many of the democratic welfare states or egalitarian political movements that grew around the globe after the fall of colonialism and World War II lost ground or failed in significant part because they appeared too powerful in that global competition, not too weak. Grandin argues that U.S. leaders inverted moral rhetoric about democratic freedom, joining moral and market fundamentalism, to justify military intervention that undermined the choice to increase economic and political equality in Latin American countries through the 1980s. In that period, the United States helped prevent El Salvador from becoming a more democratic, egalitarian, and economically successful state not simply by promoting free market ideas, but also by spending over a million dollars a day for a decade to support a military counterinsurgency operating through what a 1991 U.S. Defense Department report called "lavish brutality"—death squads willing and able to murder thousands of people (Grandin 2006, 71, 98, 105). These Latin American policies have served as a model for foreign policy in the Middle East, where lofty claims of promoting democracy and free market prosperity have been accompanied by the pillaging of resources and assets, rampant violence, and infrastructure destruction along with new systems of military rule backed by murder, torture, extra-legal detention, and long-term foreign occupation.

Neoliberalism bad - WarNeoliberalism drives society to war and environmental degradation through a profit mindset Henry A. Giroux 2004, Professorship at McMaster University in the English and Cultural Studies Department, 8/7/2004, Neoliberalism and the Demise of Democracy: Resurrecting Hope in Dark Times, http://www.dissidentvoice.org/Aug04/Giroux0807.htm

Neoliberalism has become one of the most pervasive, if not, dangerous ideologies of the 21st century. Its pervasiveness is evident not only by its unparalleled influence on the global economy, but also by its power to redefine the very nature of politics itself. Free market fundamentalism rather than democratic idealism is now the driving force of economics and politics in most of the world, and it is a

market ideology driven not just by profits but by an ability to reproduce itself with such success that, to paraphrase Fred Jameson, it is easier to imagine the end of the world than the end of neoliberal capitalism .

Wedded to the belief that the market should be the organizing principle for all political, social, and economic decisions, neoliberalism wages an incessant attack on democracy, public goods, the welfare state, and non-commodified values. Under neoliberalism everything either is for sale or is plundered for profit. Public lands are looted by logging companies and corporate ranchers; politicians willingly hand the public’s airwaves over to powerful broadcasters and large corporate interests without a dime going into the public trust;

Halliburton gives war profiteering a new meaning as it is granted corporate contracts without any competitive bidding and then bilks the U.S. government for millions; the environment is polluted and despoiled in the name of profit-making just as the government passes legislation to make it easier for corporations to do so; public services are gutted in order to lower the taxes of major corporations; schools more closely resemble either malls or jails, and teachers are forced to get revenue for their

school by hawking everything from hamburgers to pizza parties. As markets are touted as the driving force of everyday life, big government is disparaged as either incompetent or threatening to individual freedom, suggesting that power should reside in markets and corporations rather than in governments (except for their support for corporate interests and national security) and citizens .

Neoliberalism bad - Inequality Neoliberalism leads to class inequalities. Class inequalities are substituted by race and caste discourse. Dave Hill, teacher at University College Northampton and Director of the Institute for Education Policy Studies, and Ravi Kumar, teaches sociology at the Department of Sociology, Jamia Millia Islamia University, 2007, “Neoliberalism and Education and Its Consequences,” P. 12

Inequalities both between states and within states have increased dramat ically during the era of global neoliberalism. Global capital, in its current neoliberal form in particular, leads to human degradation and inhumanity and increased social class inequalities within states and globally . These effects are increasing (racialized and gendered) social class inequality within states, increasing (racialized and gendered) social

class inequality between states. The inequality within societies has acquired new forms. While one finds an increasing class-based polarization at ground level, there is an effort by the ruling classes to substitute for class, as the fundamental defining character istic of social identity, different social identities such as race and caste. The efforts at rejecting the primacy of class as the primary constituent of social relations are being put forth also by some “celebrated” progressive education ists (such as Apple, e.g. 2006). Sadly enough, progressive working-class move ments across the globe also fall prey to such discourses . And ultimately, they facilitate the unhindered march of neoliberal capital and the degradation and capitalization of humanity, including the environmental degradation impact primarily in a social-class-related manner . Those who can afford to buy clean water don’t die of thirst or diarrhea.

Neoliberalism sets up a plutocracy that justifies inequalities with the idea of meritocracy Jo Littler 13, PhD in Culture and Communication at the University of Sussex and Programme Director for the BA Cultural and Creative Industries, “Meritocracy as Plutocracy: the Marketising of ‘equality’ under neoliberalism,” http://openaccess.city.ac.uk/4167/1/nf8081_littler.pdf

In this essay I argue that we should pay close attention to meritocracy because it has become a key ideological means by which plutocracy - or government by a wealthy elite - perpetuates itself through neoliberal culture . It is not, in other words, merely a coincidence that the common idea that we live, or should live, in a meritocratic age co-exists with a pronounced lack of social mobility and the continuation of vested hereditary economic interests.4

Meritocratic discourse, as I show below, is currently being actively mobilised by members of a plutocracy to extend their own interests and power . Contemporary meritocracy operates to marketise the very idea of equality and can be understood in the light of Foucault’s formulation of neoliberalism as a state in which competitive markets are not conceptualised as the ‘natural’ order of things (as they were under classical liberalism), but as entities that need to be produced. 5 This helps explain some of the tenacity of the power of meritocracy , despite its clear contradictions, and how it works as a mechanism to both perpetuate, and create, social and cultural inequality

At: Capitalism Key to FreedomOur sense of “freedom” is a sham merely used to ignore the larger system of inequality based on human-capitalSophia Mihic 08, teaches political theory at Northeastern Illinois University in Chicago, “Neoliberalism and the jurisprudence of privacy”, Feminist Theory, 2008, Volume 9 Issue 2, 167-168

In the abortion cases and in arguments like the Ninth Circuit’s for a right to die, the self is posited as a free individual making decisions unfettered by the state. We will see, however , that this putatively free juridical subject is not autonomous as claimed, but reconstructed to fit the socio-economic order in the form of human capital. An understanding of the self as human capital appears to treat all individuals the same – we are all equally free to invest in and develop our own potential value – but this kind of equality conceals the importance of social inequalities. Through much of the 20th century, it was widely accepted that individual liberty could not be adequately realized in conditions of extreme inequality. The sense that freedom and social equality are interdependent is undermined when inequality is not seen as a constraint on freedom , as a public concern that ought to be addressed politically as a social policy target. Further, the delineation of the rights bearer as a sphere of non-interference, the status of the liberal individual onto itself, is effaced when we understand the self as human capital. When the self’s work and labour are no longer activities that give value to things produced – when, that is, the value of the person becomes the thing that must be invested in and hence made – having a property in oneself is weakened. Human capital’s effacement of property in oneself raises the possibility that the poor are stripped of their rights as welfare liberalism continues to fail, because the status of all rights bearers is becoming precarious in the new regime of flexible capital accumulation.

More Surveillance/Turns CaseNeoliberalism reinforces surveillance and ignores social welfare Henry A. Giroux 2014, Professorship at McMaster University in the English and Cultural Studies Department, 4/8/14, Neoliberalism and the Machinery of Disposability, http://www.truth-out.org/opinion/item/22958-neoliberalism-and-the-machinery-of-disposability

Under the regime of neoliberalism, especially in the United States, war has become an extension of politics as almost all aspects of society have been transformed into a combat zone. Americans now live in a society in which almost everyone is spied on, considered a potential terrorist , and subject to a mode of state and corporate lawlessness in which the arrogance of power knows no limits. The state of exception has

become normalized. Moreover, as society becomes increasingly militarized and political concessions become relics of a long-abandoned welfare state hollowed out to serve the interest of global markets, the collective sense of ethical imagination and social responsibility toward those who are vulnerable or in need of care is now viewed as a scourge or pathology.

What has emerged in this new historical conjuncture is an intensification of the practice of disposability in which more and more

individuals and groups are now considered excess, consigned to zones of abandonment, surveillance and incarceration. Moreover, this politics of disappearance has been strengthened by a fundamental intensification of increasing depoliticization, conducted largely through new modes of spying and the smothering, if not all-embracing, market-driven power of commodification and consumption.

Limits on surveillance use set by the government are broken in a concealed manner through a “function creep”Kevin D. Haggerty, assistant professor in the Department of Sociology and director of the Criminology Program at the University of Alberta, and Richard V. Ericson, professor with the Centre of Criminology at the University of Toronto, 2006, The New Politics of Surveillance and Visibility, P. 18-19

One of the most important dynamics shaping surveillance involves the process of 'function creep' (Innes 2001), whereby devices and laws justified for one purpose find new applications not originally part of their mandate. For example, cars now come factory-equipped with electronic black boxes designed as a safety feature to deploy airbags during a crash. The fact that these black boxes also record a car's speed, and whether the driver was wearing a seatbelt, has expanded the uses o f such devices, with the police and lawyers now employing them for criminal investigations and civil litigation.

A blatant recent example of function creep has been the rapid development and expansion of DNA databases. Although the specifics of how these systems have evolved differ by nation and state, the general tendency is for DNA databases to be initially justified as a means to monitor a very small and particularly notorious set of criminals, usually convicted paedophiles or sex offenders. Very quickly, institutional players recognized the convenience and political expedience of recording the DNA of individuals convicted of a host of other crimes. Systems have consequently expanded to collect the DNA of larger classes of accused individuals. In some locales DNA can be collected from mere suspects, a potentially enormous group of people! Other jurisdictions have proposed using DNA collected for military or criminal justice identification purposes for pure research (Sankar

2001: 287). Politicians occasionally advocate the collection of DNA of every citizen for illdefined health or security uses, as has occurred in Iceland with the support of pharmaceutical companies. At work here is a very familiar process whereby legal restrictions are loosened and political promises are ignored as new uses are envisioned for existing surveillance systems.

Arguably, function creep is one of the most important operational dynamics of contemporary surveillance. It is also notoriously difficult t o transform into a coherent and successful stakeholder politics. Function creep tends to operate in a localized ad hoc and opportunistic fashion. New tools create a new

environment of monitoring possibilities that were perhaps unanticipated by the original proponents of the system. Even activists can have difficulty imagining in advance precisely how a system will evolve . The expansion and combination of surveillance systems also tends to occur through unpublicized bureaucratic reforms that take place behind the scenes of public life. As such, they lack the moment of

disclosure that helps to concentrate public interest. Finally, activists who do draw attention to the possibilities of systemic expansion meet with reassuring public promises that a new system will only be used for a limited set of pre-established and legally circumscribed purposes. The fact that such legal restrictions tend to be regularly relaxed, and political promises ignored, as new opportunities for surveillance efficiencies are discerned is a point that is often difficult to convey to the public .

Resistance and “victory” over surveillance ratchets up stronger surveillance Kevin D. Haggerty, assistant professor in the Department of Sociology and director of the Criminology Program at the University of Alberta, and Richard V. Ericson, professor with the Centre of Criminology at the University of Toronto, 2006, The New Politics of Surveillance and Visibility, P. 20-21

Resistance is typically not motivated by a desire to eliminate or modify systems, but to evade their grasp. As such, it usually leaves the surveillance system intact, although resistance can become so widespread that specific

surveillance initiatives are withdrawn. The fact that the Hawaiian authorities eliminated the photo radar system in the face of public resistance can be seen as a 'victory.' However, victory celebrations are sometimes tempered by a recognition that such resistance can ultimately and paradoxically culminate in more intrusive surveillance. As authorities become aware of the specifics of resistance they tend to modify technologies, laws, and bureaucratic procedures accordingly, often resulting in a cumulative escalation in surveillance. It is entirely likely that if the Hawaiian officials had decided to retain the photoradar system, or if it is re-introduced, they would follow the lead of most jurisdictions and enforce existing laws that prohibit blocking licence plates and criminalize products that obstruct the cameras. Such actions would be examples of the general tendency for authorities to search out legal and technological resources to help make the world safe for the optics of surveillance systems (Ericson 1994).

While some of these new laws would undoubtedly be enforced, it is unlikely that such enforcement would occur in any coherent or consistent fashion. Instead, the legal frameworks that enable surveillance systems contribute to an environment that allows officials to draw selectively on regulations as they see fit in order to secure any number of desired outcomes . The net result of this enabling legal environment is further entrenchment of what many experience as arbitrary and capricious forms of

governance. Hence an important political dimension of resistance concerns how it can foster a dynamic back and forth of evasion and official response that tends to ratchet up the overall level of surveillance and control.

Rather than glorify resistance to surveillance as a grassroots 'revolt against the gaze/ these practices are better appreciated as a predictable and telling consequence of the rise of surveillance. Greater familiarity with various resistance techniques is an inevitable by-product of the increased level of social

monitoring. To the extent that surveillance is perceived to be unjust or stands in the way of desirable ends, more individuals will likely find themselves resisting surveillance in new and innovative ways.

The affirmative cannot curtail surveillance in the long run. Surveillance increases in a neoliberal regime. All of their impacts are inevitableBarbara Bowley, Professor of Social Sciences and Information Theory at Woodbury University, & Dennis Loo, Professor of Sociology at Cal Poly Pomona, 10/26/2012, “Secrecy, Surveillance, and Suppression: Neoliberalism and the Rise of Public Order Policies,” http://www.stateofnature.org/?p=5345

Given this distorted political framework in which the entire populace is now perceived as a threat – because nearly the entire population is threatened by neoliberal policies [2] and because authorities cannot carry out these policies except through concealment and misdirection so that ordinary forms of public supervision and observation, free speech and assembly, and what used to be

investigative journalism and the watchdog function of mass media become deeply threatening – it comes as no surprise to see the creation of a security state in which data collection has reached Orwellian levels . An explosion in the amount of surveillance of the populace is the new norm, in addition to a sea change in the manner in which data

have been and are being collected. This information is being used to intimidate, extort, and suppress the public (including public officials such as any members of Congress or other public officials such as governors [3] who might think to protest even aspects of the radically changing nature of the political system).

Although conventional surveillance techniques such as wiretapping have been in existence as long ago as the 19th century, with the rise of neoliberalism, the scope of surveillance has increased by quantum leaps, with the unholy alliance of neoliberal policies and the technological infrastructure of a wired society.

Alternative

Alt SolvesOur alternative solves – it roots privacy in collective need rather than in individuals Christian Fuchs ’12 Uppsala University, Department of Informatics and Media Studies “The Political Economy of Privacy on Facebook” Television & New Media 13(2) 139–159

It would nonetheless be a mistake if we were to fully cancel privacy rights and dismiss them as bourgeois values. Liberal privacy discourse is highly individualistic; it is always focused on the individual and his or her freedoms. It separates the public and the private sphere . Privacy under capitalism can best be characterized as an antagonistic value that is, on the one hand, upheld as a universal value for protecting private property, but is, on the other hand, permanently undermined by corporate and state surveillance into human lives for the purpose of capital accumulation. Capitalism protects privacy for the rich and companies, but, at the same time, legitimates violations of consumers’ and citizens’ privacy. Liberal privacy values have their limit and find their immanent critique within the reality of liberal-capitalist societies. When discussing privacy on Facebook, we should therefore go beyond a bourgeois notion of Facebook and try to advance a socialist concept of privacy that aims at strengthening the protection of consumers and citizens from corporate surveillance and other forms of domination. Economic privacy should be posited as undesirable in those cases, in which it protects the rich and capital from public accountability, but as desirable, in which it tries to protect citizens, workers, and consumers from corporate surveillance. Public surveillance of the income of the rich and of companies as well as public mechanisms that make their wealth transparent are desirable for making wealth and income gaps in capitalism visible. Such an approach includes privacy protection from corporate surveillance. In a socialist conception of privacy, the existing privacy values have to be reversed . Today privacy laws and surveillance of the poor, workers, consumers, everyday citizens, protects private property; in contrast to this reality, a socialist conception of privacy focuses on surveillance of capital and the rich in order to increase transpar- ency and privacy protections for consumers and workers. A socialist conception of privacy conceives privacy as a collective right of exploited groups that need protection from corporate domination that uses data gathering for accumulating capital, for disci- plining workers and consumers, and for increasing the productivity of capitalist pro- duction and advertising. The liberal conception of privacy (and its reality) as an individual right within capitalism protects the rich and their accumulation of more wealth from public knowledge. A socialist conception of privacy as a collective right of workers and consumers can protect humans from the misuse of their data by companies.

At: alt doesn’t do anythingCritical legal studies has numerous policy implications. The demand for a specific policy proposal, however, misunderstands the indeterminacy thesis. If we win our link that the law is indeterminate, then single policy proposals are much less important than large scale social changes

Mark Tushnet ’5 Prof of Law at Harvard, formerly Georgetown. Father of Rebecca. “Critical Legal Theory” The Philosophy of Law and Legal Theory pp 80-90

That critical legal theory’s recommendations about what to do at the moment of choice were ungrounded led to another line of criticism, this one a criticism to which critical legal theory’s social theory responded. As one sympathetic ob- server put it, the question that killed critical legal studies was, ‘‘What would you do?’’ (Fischl 1992). That is, critics of critical legal theory wondered what concrete policy proposals critical legal theorists offered. In several senses, the question was misplaced. Works in critical legal theory made scores of con- crete policy suggestions, ranging from endorsing liberal versions of property/contract law such as finding an implied warranty of habitability in leases to impoverished tenants (Kennedy 1976), to suggestions about the way in which national labor law should be interpreted (Klare 1978), to proposals for large-scale constitutional changes that included creating a branch whose task was to be available to destabilize settled understand- ings of the law (Unger 1987). The difficulty, according to critical observers, was that these proposals were either entirely conventional, re- quiring nothing from critical legal theory to support them, or wildly utopian, unachievable in present circumstances or even in realistically foreseeable ones. Proponents of critical legal theory made con- crete policy proposals, but they did so on under- standings quite different from those of their interlocutors. To some extent, the proposals were designed to expand the range of things that legal theorists could consider. Too often, critical legal theorists believed, law was seen as compelling particular policy choices, or at least as sharply narrowing the range of outcomes that could be achieved in a manner consistent with existing legal materials. The indeterminacy thesis demonstrated that these claims of necessity were false. One point of the policy proposals was to pose the question: what in the existing legal ma- terials rules out this proposal? When the answer was, ‘‘Nothing,’’ critical legal theorists turned to social theory to account for the unnecessary restriction of policy argument. Critical legal theory’s distinctive policy proposals may have been utopian, but – although critical legal theorists would have been happy had the proposals been adopted – the proposals’ point was to expose that their utopianism resided in social arrangements, not in the legal materials. Critical legal theory’s social theory had another implication, related as well to the question of policy proposals. The theory’s interlocutors wondered what proposals flowed from critical legal theory. The indeterminacy thesis and the social theory associated with critical legal theory answered that nothing flowed from the theory in the sense required. The question assumed some degree of legal or social determinacy, an assumption that critical legal theory rejected. All that could be done in any specific situation was to engage in an extremely detailed analysis of the interests at stake, the possibilities of change, the social setting, and much more; serious policy proposals could emerge only from such fine- grained analyses, and even then decision makers were highly likely to find

themselves at a point when they would simply have to make a pure choice. So the questions being asked of critical legal theory demonstrated, to the critical legal theorists, a deep lack of understanding of the theory itself.

At: Cede the PoliticalTURN: Neoliberalism is the biggest threat to the political, not the alternative – Robert W. McChesney 98, Professor at University of Illinois at Urbana-Champaign in political economy of communication, October 1998, Introduction to “Profit over People,” http://cdn.preterhuman.net/texts/thought_and_writing/philosophy/Chomsky,%20Noam/Chomsky,%20Noam%20-%20Profit%20Over%20People,%20Neoliberalism%20And%20Global%20Order.pdf

The neoliberal system therefore has an important and necessary byproduct—a depoliticized citizenry marked by apathy and cynicism. If electoral democracy affects little of social life, it is irrational to devote much attention

to it, in the United States, the spawning ground of neoliberal democracy, voter turnout in the 1998 congressional elections arguably was a record low, with just over one-third of eligible voters going to the polls. Although occasionally generating concern from those established parties like the U.S. Democratic Party that tend to attract the votes of the dispossessed, low voter turnout tends to be accepted and encouraged by the powers-that-be as a very good thing since

nonvoters are, not surprisingly, disproportionately found among the poor and working class. Policies that could quickly increase voter interest and participation rates are stymied before ever getting into the public arena. In the United States, for example, the two main business-dominated parties, with the support of the corporate community, have refused to reform laws that make it virtually impossible to create new political parties (that might appeal to nonbusiness interests) and let them be effective. Although there is marked and frequently observed dissatisfaction with the Republicans and Democrats electoral politics

is one area where notions of competition and free choice have little meaning. In some respects the caliber of debate and choice in neoliberal elections tends to be closer to that of the one-party communist state than that of a genuine democracy.

But this barely indicates neoliberalism's pernicious implications for a civic-centered political culture. On the one hand, the social inequality generated by neoliberal policies undermines any effort to realize the legal equality necessary to make democracy credible. Large corporations have resources to influence media and overwhelm the political process, and do so accordingly. In U.S. electoral politics, for just one example, the richest one-quarter of one percent of Americans make 80 percent of all individual political contributions and corporations outspend labor by a margin of 10-1. Under neoliberalism this all makes sense, as elections then reflect market principles, with contributions being equated with investments. As a result, it reinforces the irrelevance of electoral politics to most people and assures the maintenance of unquestioned corporate rule.

On the other hand, to be effective, democracy requires that people feel a connection to their fellow citizens, and that this connection manifests itself though a variety of nonmarket organizations and institutions. A vibrant political culture needs community groups, libraries, public schools, neighborhood organizations, cooperatives, public meeting places, voluntary associations, and trade unions to provide ways for citizens to meet, communicate,

and interact with their fellow citizens. Neoliberal democracy, with its notion of the market über alles, takes dead aim at this sector Instead of citizens, it produces consumers. Instead of communities, it produces shopping malls. The net result is an atomized society of disengaged individuals who feel demoralized and socially powerless.

In sum, neoliberalism is the immediate and foremost enemy of genuine participatory democracy, not just in the United States but across the planet, and will be for the foreseeable future.

Other Blocks

AT: PermThe perm still links – any endorsement of privacy as an individual right or freedom strengthens capitalist social relations. Relying on the rhetoric and concept of privacy co-opts and prevents alternative movements from solving

Aaron Henry 2013, Carleton University Sociology and Political Economy PhD candidate, Winter 2013, “Perpetual Object of Regulation: Privacy as Pacification,” Socialist Studies/Études socialistes 9-2, http://socialiststudies.com/article/view/23507/17392

We have established the idea that ‘privacy’ has the effect of disassociating security from the fabrication of private life or, rather, privacy creates the conception that security is distinct and balanced by liberalism. What does any of this have to do with privacy and the further alienation of our collective social power? It is not enough to state that privacy is the means whereby security extends

itself into social life and assures us of its own proportionality or reasonableness. Rather, privacy not only fails to challenge capital, as Neocleous has demonstrated (2002, 106) but, further still, lends itself to the reification of capitalist social relations and the further separation of the individual to their own social power and objective conditions of life. Privacy not only numbs us to the logics of security and its reasonable agreement to let certain areas of our lives occur seemingly unencumbered by security projects. Rather, it ensures, through the limits privacy sets on our experiences of collective life, the forms of political activity and social engagement that appear possible to us, that in advancing privacy we only further reinforce security and its colonization of “all aspects of human practices and thinking” (Rigakos, 2011, 62). As Marx noted “labour is, therefore, the objectification of [human] species life,” reality is constructed through and mediates upon the social, economic, and biological conditions through which humans contemplate their own objectively constituted existence (Marx, 1975, 76). It follows that species being, as both the object and will of one’s practical activity and as the objective reality contained and represented in the products of labour, is estranged by the condition of labour in capitalist society. Thus, in the course of making the worker’s product nothing more than the “means to our physical existence” in equal measure species-life itself becomes [merely] a means” as well (Marx, 1975, 77). The estrangement of life and labour from nature and other people force both nature and other people to “appear as objects other than and differentiated from” [the labourer] (Marx, 1975, 78). As such, relations that one confronts independently of one’s own particular labour, forces of ‘nature’ and other individuals appear “as something alien and objective, confronting [individuals] not as their relations to one another but as our subordination to relations which exist independently of [us]” developing merely from the collisions between mutually indifferent individuals (Marx, 1973, 157). To this end, with the advent of capitalist relations, the individual’s understanding of themselves as part of a species life dissipates and instead the predominant social bond between individuals is that of “a spontaneous interconnection, [a] material and mental metabolism...independent of the knowing and willing individuals [which] presupposes their “reciprocal independence and indifference” (Marx, 1973, 161). Consequently, as the contemplation of social life of life-activity as a shared social product wanes and in its place individuals increasingly find themselves “ruled by abstractions” as objective relations of dependency, the reciprocal relations of production appear separate and autonomous to the individuals who constitute these very relations (Marx, 1973, 164). My point is not that ‘privacy’ produces these conditions; the estrangement of individuals from species-life is innate to capitalist

production. My point is that privacy serves to further acclimatize us to this reification of species-life as nothing more than the atomized world of the ‘individual’. Which is a way of saying that privacy is part and parcel of the process of pacification, a key mechanism in the fabrication of bourgeois order. In particular, it is only in the absence of species-life, when our relations of our social dependence take on the fantastic form of relations between things and relations between people appear as forces alien to us, that the partitioning of social life into private isolated, ‘natural’ individuals becomes feasible; “liberty is... the right to do everything which does not harm others” it is essentially

“the right of the circumscribed individual, withdrawn into him/herself” (Marx, 1975, 42). Thus, the demand for privacy is not merely forever circumscribed by the logics of security but it entrenches the very separations between people presupposed by capitalist social relations that security is used to enforce and maintain. Privacy, then, promises a life apart, a mode of existence separate from others and to this end is presupposed by our appearance as individuals who are autonomous from another and can, therefore, ‘choose’ to be further detached and apart. Before concluding I think there is an overarching political implication from this relation between privacy, security and capital. This appearance of choice, of course, serves only to further obfuscate the social nature of human existence and our inextricable tie to unequal class, gender and race relations. By agreeing to live in the form of privacy that is carved out by security projects, we live as individuals who perceive their primary social bond with society to be nothing more than a spontaneous,

indifferent and independent set of connections. Any social forces we are confronted by are, by definition, abstractions of the concrete real relations of society. As such, increasingly structural forces such as unemployment, ecological catastrophe, fears about old-age or even general depression or dissatisfaction have the appearance of existing completely suspended from our society and

our mode of social (re) production. In this sense, adhering to privacy, as a mode of resistance does not just leave one apart from society but it ‘displaces’ the social with the ‘personal’ . In this sense, it is only partially true, as Tocqueville claimed, “as the extent of political society expands, one must expect the sphere of private life to contract” (1968, [1840], 782-3). It may be true that as political society grows, it develops to include new apparatuses to consolidate and legitimate dominant relations of rule (Abrams, 1977, 58); but in capitalist society the growth of political society in any substantive sense (i.e. the common deliberation on life in its totality not merely in its forms of abstraction) is utterly antithetical to conditions of accumulation in capitalist society; after-all, the egotistical person “is [in capitalist society] the foundation and presupposition of the political state” (Marx, 1975, 45). However, the opposite holds; as political society shrinks the larger the sphere of ‘private social life’ looms. In particular, the less leave we are given collectively to contemplate and organize the objective

conditions of social reproduction (education, labour, health-care, old-age) and the more private market relations come to dominate our social experience, the more private life becomes our only mode of contemplation and action. Indeed, although we should not conflate privacy and privatization, the latter historically presupposes the emergence of the former, privacy has increasingly become a force of further commodification. Not solely in terms of direct commodification but in eschewing one’s existence as a social being, individuals are increasingly left with no other expression or mode of contemplation outside their own private milieu. As such, when confronted by social, economic and political forces the recourse of the private individual is not to confront these forces as the products of our own objective activity or even as incidents that can be challenged collectively but as personal threats or risks.

Thus, each, in the scale of their own atomized sense of reality, manages these personal risks and effects through the only sphere of relations open to the private individual: commodification and correlative security projects. Thus, we purchase security against disease, security against disability, theft, unemployment, old age, etc. as these things crowd into our ‘lives apart from society’ as nothing more than personal concerns abstracted from the objective concrete relations that determine them. To the extent that human life becomes monadic and takes on the appearance of being assailed by alien forces, the more the demands for protection from these forces is expressed in purchases of private or

individual security from these forces; which, in turn, only makes social life all the more atomized and ‘apart’. Thus, in the course of drawing on privacy as a means to confront economic and political domination, we are not only acclimatized to the existence of these relations but we are pacified, or at least deterred, from radical, collective forms of political action. “Security is not just hegemonic, it is hegemony”, says Rigakos (2011, 58). Attempts to reveal the tensions and points of incoherency within security projects simply seem to drive the greater refinement of these very projects. In many respects, it is the hegemony of security, its analytical inscrutability that has prompted the turn to pacification both as a concrete historical formation of rule and as an analytical concept, a means to reveal its contingencies, its overlaps, and points of formation (Rigakos, 2011, 61; Neocleous, 2010). The other problem posed by the hegemony of security, implicit to the first problem perhaps, is that in attaining hegemony it has colonized a number of social forms.

This means that some relations that appear like sites of possible resistance, such as privacy, in fact form capillary points in the economy of relations behind security. With this problem in mind I have tried to tease out the historical relation of privacy to security in capitalist society, so as to demonstrate how the former was, from the outset, entangled with the latter. Security presupposes privacy, decides its scope of power and the facets of social life to which it

applies. Furthermore, not only does security condition privacy but also privacy itself, as a mode of life, has the effect of pacifying us to the further penetration of security into social life . Thus, privacy will be in existence for as long as the logics of security remain in play; for, as I outlined earlier in this discussion, it is the private sphere of relations, the sanctity of homo-economicus, that the project of police has long since had as its object. We on ‘the Left’ would do well to consider these aspects of privacy. As suggested by Tyler Wall’s paper in this collection, it is by making appeals to privacy, that drones in the United States have made the transition from battlefield technology to a component of the ‘domestic’ security apparatus. Following the insights from this paper, it can be argued that challenging drones through privacy will ostensibly experience moderate success. Drones perhaps will only be flown at certain times, in certain areas, and will contravene these rules only when vital security or safety concerns arise. The footage they capture will perhaps even be handled in a manner similar to the PNR data.

Yet it is the security apparatus itself, not privacy, that will determine how these limits operate.

These limits not only become our measure of freedom and autonomy but also structure our pacification. Thus, in a society that approaches security through the right to privacy, the proliferation of the conduct of war abroad and at home, the organization of human potential into a dehumanizing economic mode of production, will continue apace; insofar as these forces will continue to confront us as happenstance

things, filtering in and out of each individual’s private, insular existence. To live this pacified mode of life is no less the promise of privacy than it is the guarantee of security.

Privacy can’t be made into a tool of resistance as long is tied to the idea of ownership and property.Sebastian Sevignani ’12 Unified Theory of Information Research Group “The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora” tripleC 10(2): 600-617, 2012

As the privacy issue is a core issue in Diaspora*’s self-image, evaluating Diaspora*’s alternative potential must include not only evaluating its mode of production, but also a critical evaluation of privacy as a whole. In the following, I will interlink both issues. Christian Fuchs has outlined how we can analyse capital accumulation on SNSs in Marxian terms (Fuchs 2012, 143-146). Facebook’s and others’ capital accumulation strategy is mainly based on the targeted advertising business model, which means that they engage in exchange contracts with the advertising industry. The owner buys technical infrastructure, such as server parks and software components, as well as labour force, such as accountants, software developer, etc, and produces the SNS on which users can interact. While people use the site for different rea- sons, such as getting news, providing information, staying in touch with friends, making new rela- notion of privacy (“puts you in control of your information”) and relates the promise of user control to property

(“You retain full ownership of all your information”). Dominant privacy theories stress the individual’s control over access to personal information and are deeply rooted in people’s minds and their practical role as marketers. Privacy-aware users, who see commercial SNSs as associated with privacy invasive behaviour, are surely attracted by Diaspora*’s

privacy statement. One consequence of privacy theories stressing the individual con- trol aspect is that they avoid objective constraints of the individual’s power to control and decide. The public good finds no consideration here. Another alternative SNS in the making, TheGlob- alSquare, which is associated with the “occupy” movement (Roos 2011), also relates to the privacy discourse. It makes more substantial claims about what privacy is and what it is not: “Individuals have a right to privacy as part of the rights they brought from a state of nature [...]. Organizations and actions which affect the public are not protected by any such rights” (Marsh 2012). Here, indi- vidual control is not seen exclusively and this example proves that Diaspora* could also behave differently in its recourse to the value of privacy. As far as I can see, in its various self-descriptions, Diaspora* does not propose any qualification of privacy that can constrain exclusive individual con- trol and is

therefore likely to fit into the dominant theories of privacy. Diaspora* mobilises the power of the individuals and their privacy – for which they think that they owe nothing to society – against economic surveillance. So, it challenges successfully the economic foundations underlying privacy threats, but does not challenge privacy as a possessive individualistic concept. On the contrary, Diaspora*’s focus on privacy is accompanied by stressing the relevance of ownership. Concepts of ownership or private property support the exclusive and individualistic no- tion of privacy . Here again, Diaspora* reacts to commercial SNSs. Facebook, for example, states in its terms of use that users grant Facebook “a non-exclusive, transferable, sub-licensable, royalty- free, worldwide license to use any IP [intellectual property] content that you post on or in connec- tion with Facebook” (Facebook 2011). In the case of Diaspora*, such a license is not possible. However, in the same passage, Facebook also states that “you own all of the content and infor- mation you post on Facebook, and you can control how it is shared through your privacy and appli- cation settings” (Facebook 2011). Is the notion of ownership then so appropriate for an alternative to capitalist SNSs? I think it is not and the relationship between privacy as commodity (the Face- book license for instance) and privacy as an aspect of self-possession (Diaspora*’s notion), which has been outlined above, gives grounds for holding a sceptical view. Diaspora*’s vision of privacy protection is, as outlined in the first section, essentially based on the individual opportunity to change pods/SNS-provider. Users need ownership of their data in order to migrate them from pod to pod: “And because your information is yours, not ours, you’ll have the ultimate power — the abil- ity to move your profile and all your social data from one pod to another, without sacrificing your connection to the social web” (Diaspora 2011c; emphasis in original). Assuming that Diaspora* will never be able to outdo Facebook in terms of provided features and network effects in the view of the majority of SNSs users, users may then voluntarily decide to sell their privacy on Facebook or Google+ and they are indeed able to do this as they have exclusive control and ownership of their privacy. Exactly, these premises of the privacy commodity exchange are also propagated by Dias- pora*. The dominant theoretical privacy concept cannot provide reasons why users should not be- have like this. At this point of Diaspora*’s evaluation, it may be useful to remember Marx’s “leading threat” of investigation expressed in the previously quoted passage from the preface to A Contribution to the Critique of Political Economy, where he refers to the relation between the entire economic founda- tion of society and the more or less rapidly transforming superstructures within which humans be- come conscious of conflicts and fight them out. The focus on privacy, as it is dominant in capital- ism, may result from

Diaspora*’s multi-faceted embeddedness in capitalist structures. There is capital accumulation related to copyleft. On the one hand, copyleft products can be used for free in order to produce non copyleft products. For instance, machines that produce umbrellas can be operated on behalf of free and copyleft software. The producer of umbrellas does not have to pay for that kind of software although it contributes as means of production to his or her capital accumulation. In this case, an intensive exploitation of the labour that was once spent on the copyleft product takes place. The producer of umbrellas saves the money that he or she would otherwise have to pay for the machine’s operating software. On the other hand, copyleft products are attractive for users as they cheap, widely cheaply accessible and have a high quality since a huge pool of co-operative labour builds them. Copyleft products are also often more flexibly adapt- able to specific purposes. This appeal can be used for capital accumulation indirectly. Commercial firms may offer services that are related to copyleft products. For instance, a producer of umbrellas pays another firm that collects and aggregates suitable copyleft components for running umbrella-tions, or organising events, they produce a wide range of data. These data, which include for in- stance socio-demographic information and consumer preferences deduced from users’ browsing behaviour, are then sold to advertisers. Whereas traditional forms of advertising are directed to broad groups of potential buyers, targeted advertising is tailored for exactly defined and differenti- ated groups, or even single consumers. This demands more detailed, exact, and differentiated knowledge of the users’ needs and (buying) behaviour, which can be provided by the owner of SNSs. The SNSs’ business model is based on the secondary use of user interaction for commodi- fication and valorisation purposes (Smythe 1989; Fuchs 2011a). The economic reason why profit- oriented SNSs develop massive systems of user surveillance and store “literally everything”, as a Facebook employee has admitted (Wong 2010), lies therein. Users’ interests in privacy can only be considered where the need for privacy does not inhibit SNSs’ profit interests. In fact, commercial SNSs commodify users’ privacy. They often do it without users’ explicit consent, when they hide their profit-orientation behind the social value of networking. Today, SNSs are increasingly com- pelled to respect users’ privacy through legal investigations, public pressure initiated by privacy movements, and alternative SNSs such as Diaspora*, but this does not mean that commercial SNSs have to abjure the targeted

advertising model. Commercial and advertising funded SNSs need users who have control over their data and are able to exchange their privacy for the usage of the platform voluntarily by agreeing to the terms of use. For them, in order to maintain newer forms of exploitation, the challenge is not to fight against privacy at all; rather, they can support privacy if it is – as an analogy to labour force - related to private property, and hence alienable or exchange- able. It seems that simply upholding privacy is not the right move in order to challenge surveillance (Nock 1993, 1; Lyon 2005, 27; Stalder 2002). Diaspora* breaks with this advertising model based on privacy as commodity; hence, it protects its users and their personal data from exploitation: “Yet our distributed design means no big corpo- ration will ever control Diaspora. Diaspora* will never sell your social life to advertisers, and you won’t have to conform to someone’s arbitrary rules or look over your shoulder before you speak” (Diaspora 2011c; emphasis in original). Gary T. Marx reminds us that “privacy for whom and sur- veillance of whom and by whom and for what reasons need to be specified in any assessment” (Marx 2012, vii). Due to its distributed infrastructure and its funding model that is not based on ad- vertising, one can argue that Diaspora* practically provides an alternative concept of privacy (Fuchs 2012, 153f.). Diaspora* sees “privacy as collective right of dominated and exploited groups that need to be protected from corporate domination that aims at gathering information about work- ers and consumers for accumulating capital, disciplining workers and consumers, and for increas- ing the productivity of capitalist production and advertising” (Fuchs 2011b, 232). While I agree that Diaspora* practically avoids commodification of privacy and the exploitation of users, I nevertheless see some constraints for an alternative non-ideological notion of privacy that follows from my preceding

analysis. Not only is treating privacy as commodity a problem but it should also be taken into account that conceptualising privacy as an aspect of self-ownership is ideological and cannot be separated from exploitation in capitalism. In fact, although Diaspora* is directed against newer forms of exploitation of users’ privacy, its recourse to privacy remains bound to exploitation in general as it confirms exploitation’s ideological premises – the possessive individualistic ideology. I shall provide evidence for such a claim.

Relying on the legal system integrates potentially transformative movements into the conservative legal establishment. The permutation would prevent the alternative from solving.Peter Gabel ’84 Prof of Law, New college of california school of law “The mass psychology of the new federalism” 52 Geo. Wash. L. Rev. 263 1983-1984

And what is this new social consciousness, this new "false social- meaning system?" In intellectual terms, I would describe it as fol-

lows: given the collapse of any visible progressive social movement that could offer a concrete hope of greater happiness, people are ex- periencing an intense privatization of everyday life in which the work-world has become a meaningless milieu perceived solely as a place to "get money" and in which any genuine human contact is felt only in privatized settings like the family, bars, and relatively margi- nal organizations like church groups. This intense privatization cou- pled with the lack of any visible social alternative is producing immense frustration and anger, and this frustration and anger is be- ing directed in part at previous political illusions and their false promises of a better life. The creation of a false social-meaning sys- tem to legitimize this very situation requires transforming this nega- tive into an affirmative. And this affirmative can and should be expressed bluntly: "Unions are self-serving, rehabilitating criminals is a fraud, politicians are corrupt, and the poor can help themselves. We Americans are good law-abiding people, we know what's what, and we want you phony liberals with your phony morality to leave us alone. We can make out just fine if only we can get you off our backs." Now in fact this affirmation of the value of privatism is completely false, and deep in their hearts everyone knows it's false. But the false "we" in this quasi-populist diatribe can still provide a substitute feel- ing of community that can serve as a cover for actual suffering and isolation, particularly when a leader emerges who can institute the group's unity by embodying its ethic in public space. They do not care that Reagan can not answer questions at press conferences be- cause at last the truth is out: press conferences are a charade. And they certainly do not care that Rehnquist substitutes slogans for analysis, as Owen Fiss says disapprovingly in citing Rehnquist's re- mark that the Constitution does not guarantee prisoners "one man, one cell.""' They know that legal analysis is just like Washington press conferences and that in some way Rehnquist is giving it to them when he makes fun of the profundity of 'constitutional doctrine and

interpretation. The fact is that this reaction to the liberal social-justice attitude is absolutely valid. The fact is that "our federalism," our "fundamental values" that were being carried to the states through the fourteenth amendment and to private parties

through the commerce clause were never really intended to achieve social justice by abolishing the hierarchy-system and giving power to the large masses of people. They were intended to maintain these very hierarchies while at the same time satisfying a very genuine wish within liberal conscious- ness to "help" poor people, third-world people, those most oppressed by the system. In the long run this could only produce a sense of contradiction and anger among those not helped. Collective anger is not the only force at the heart of the new "We" that the Burger Court is trying to create, although this anger is of great libidinal importance in binding the energy of the New Right to- gether. There is also a positive utopian content in the new world- view. As I have said earlier, these world-views that succeed one an- other, generation after generation, are always founded upon a polit- ical illusion, an illusion that the world is the way it is because "We" want it this way and not because it is forced upon us. What is the political illusion inhering in the deregulation of subordinate power- centers, the return to states' rights, and in the view that criminals are criminals and that's all there is to it? It seems to me that this illusion is to be located in the displacement of the mass powerlessness generated by the concrete experience of socio-economic life into an imaginary political sphere such that the feelings of powerlessness associated with

isolation and privatization appear to be caused by an imaginary political oppression. This oppression is then relieved in an imaginary way by the wish-fulfilling fantasy of "getting the government off our backs so that we can be free again." In other words, what Jeff Blum views as an instrumental deregulation of subordinate power-centers in his realist critique of Burger Court ideology must actually be understood as what one might call a "deregulation of the world" in the realm of mass- psychological fantasy. Thus, while it may appear to be against the rational self-interest of working class people to support the striking- down of legislative restraints on corporate campaign contributions as the Burger Court has done in the name of freedom of expression,12 it is in their psychic self-interest to support such an action because it allows them simultaneously to deny an intolerable contradiction of their concrete existence - the need for power and the apparent im- possibility of realizing it - and to alleviate the contradiction in the realm of fantasy. It allows people to feel that "we are free to express ourselves again," even as their

actual life conditions force precisely the opposite awareness upon them every day of their concrete existence. The true role of the Court in this process of displacement of contra- diction and generation of substitute gratification is both to satisfy a need brought about by popular suffering and to control this need so as to maintain the equilibrium of the status quo. As state officials who are granted prestige and high salary

solely on the basis of the political legitimacy of the existing system, most judges are interested in keeping things the way they are. This requires the ideological integration of destabilizing movements from the right as well as from the left, and it is actually this attempt at ideological integration that peo-ple refer to when they say the Court is "moving to the right." The Court's aim is precisely to make the rise of the New Right constitutional, and in so doing to resolve the current legitimacy-crisis by reconstituting the existing hierarchy-system within an imaginary framework that conforms to a new "intent of the framers." For in the long run it is only by transforming the recent wave of right-wing ac- tivism into a passively-accepted legal order that the new conserva- tism can become a genuinely dominant ideology in the way that democratic liberalism has been for most of our recent history. Whether this process of re-legitimation will succeed depends upon a great many factors, among the most important of which is the self- conscious, sustained efforts of groups like ourselves to refute the New Right's vision

convincingly by showing that it mystifies a world that cannot actually satisfy people's real human needs. But to do this we must be more radical rather than less radical, using whatever re- sources are available to us as teachers and practitioners to expose the myths of liberal as well as conservative world-views. Speaking to law teachers in particular, since I am a law teacher myself, this means abandoning any professionalist identification with the liberal- legalism of the Warren Court and showing how the Burger Court's ideology makes sense to a mass middle-class and working-class con- stituency faced with unliveable contradictions in their everyday lives.

The public/private distinction is unstable and analytically bankrupt. Embracing a concept of privacy shuts down alternatives to liberal political ordersKarl E Klare ’82 Professor of Law, Northeastern University “THE PUBLIC/PRIVATE DISTINCTION IN LABOR LAW” 130 U. Pa. L. Rev. 1358 1981-1982

For the most part the terms "public" and "private" will be used in this Article simply as they appear in the cases and doctrinal literature. However, these terms have several distinct if related and overlapping meanings, and this Article will be primarily con- cerned with the formulation that focuses on distinguishing between the "political" and "socio-economic" domains of life.8 Part I provides an overview of some specific doctrinal examples of the public/private distinction in labor law. Part II offers a more detailed examination of a particular problem, namely the various appearances of the public/private distinction in the theory of the collective bargaining and grievance processes. Parts I and II will attempt to establish that although public/private rhetoric is perva- sive in labor doctrine, it is devoid of significant, determinate ana- lytical content. Specifically, the Article will demonstrate the in- coherence of the public/private distinction by showing that: (i) the distinct designations "public" and "private" are at different times, or even simultaneously, employed to characterize the same phe- nomena; 9 (ii) judges and other legal thinkers beginning from an identical premise about the "publicness" or "privateness" of a par- ticular phenomenon will arrive at sharply contrasting or opposed legal conclusions regarding it; or, beginning from opposed premises they will arrive at identical legal conclusions; 10 and (iii) most im- portant, the "borderline" dividing "public" and "private" is con- stantly being altered and redefined in the presence of new legal problems, but absent significant changes in the nature of the under- lying phenomena or social forces that the labels "public" and "private" supposedly describe." Overall, the several examples contained in Part I and the ex- tended review of one issue in Part II are intended to suggest that it is seriously mistaken to imagine that legal discourse or liberal political theory contains a core conception of the public/private distinction capable of being filled with determinate content or ap- plied in a determinate manner to concrete cases. There is no "public/private distinction." What does exist is a series of ways of thinking about public and private that are constantly undergoing revision, reformulation, and refinement. The law contains a set of imageries and metaphors, more or less coherent, more or less prone to conscious manipulation, designed to organize judicial thinking according to recurrent, value-laden patterns. The public/private distinction poses as an analytical tool in labor law, but it functions more as a form of political rhetoric used to justify particular results. Part III explores the apologetic character of public/private discourse in labor law, discussing three particular sets of political values that are contained in and reinforced by contemporary public/private rhetoric about the workplace. It argues that the use of such rhetoric obscures rather than illuminates, and that the social function of the public/private distinction is to repress aspirations for alternative political arrangements by predisposing us to regard comprehensive alternatives to the established order as absurd.

AT: Law Good

Law = Violence

The law is not defined by objective reason or by logical rules – it functions only because of foundational and continuous violenceRobert Cover ’86 Professor law at Yale, “Violence and the Word” 95 Yale L.J. 1601 1985-1986

Legal interpretation' takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind

victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. This much is obvious, though the growing literature that argues for the centrality of interpretive practices in law blithely ignores it.2 Taken by itself, the word "interpretation" may be misleading. "Inter- pretation" suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. In- deed, pain and death destroy the world that "interpretation" calls up. That one's ability to construct interpersonal realities is destroyed by death is obvious, but in this case, what is true of death is true of pain also, for pain destroys, among other things, language itself. Elaine Scarry's bril- liant analysis of pain makes this point: [F]or the person, in pain, so incontestably and unnegotiably present is it that "having pain" may come to be thought of as the most vi- brant example of what it is to "have certainty," while for the other person it is so elusive that hearing about pain may exist as the pri- mary model of what it is "to have doubt." Thus pain comes un- shareably into our midst as at once that which cannot be denied and that which cannot be confirmed. Whatever pain achieves, it achieves in part through its unshareability, and it ensures this unshareability in part through its resistance to language .. . .Prolonged pain does not simply resist language but actively destroys it, bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned.3 The deliberate infliction of pain in order to destroy the victim's norma- tive world and capacity to create shared realities we call torture. The in- terrogation that is part of torture, Scarry points out, is rarely designed to elicit information. More commonly, the torturer's interrogation is designed to demonstrate the end of the normative world of the victim-the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded. Scarry thus concludes that "in compel- ling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying."'4 That is why torturers almost always require betrayal-a demonstration that the victim's intangi- ble normative world has been crushed by the material reality of pain and its extension, fear.5 The torturer and victim do end up creating their own terrible "world," but this world derives its meaning from being imposed upon the ashes of another.' The logic of that world is complete domina- tion, though the objective may never be realized. Whenever the normative world of a community survives fear, pain, and death in their more extreme forms, that very survival is understood to be literally miraculous both by those who have experienced and by those who vividly imagine or recreate the suffering. Thus, of the suffering of sainted Catholic martyrs it was written: We must include also ...the deeds of the saints in which their triumph blazed forth through the many forms of torture that they underwent and their marvelous confession of the faith. For what Catholic can doubt that they suffered more than is possible for human beings to bear, and did not endure this by their own strength, but by the grace and help of God?'And Jews, each year on Yom Kippur, remember- Rabbi Akiba. . .chose to continue teaching in spite of the decree [of the Romans forbidding it]. When they led him to the executioner, it was time for reciting the Sh'ma. With iron combs they scraped away his skin as he recited Sh'ma Yisrael, freely accepting the yoke of God's Kingship. "Even now?" his disciples asked. He replied: "All my life I have been troubled by a verse: 'Love the Lord your God with all your heart and with all your soul,' which means even if He take your life. I often wondered if I would ever fulfill that obli- gation. And now I can." He left the world while

uttering, "The Lord is One."" Martyrdom, for all its strangeness to the secular world of contemporary American Law, is a proper starting place for understanding the nature of legal interpretation. Precisely because it is so extreme a phenomenon, martyrdom helps us see what is present in lesser degree whenever interpretation is joined with the practice of violent domination . Martyrs insist in the face of overwhelming force that if there is to be continuing life, it will not be on the terms of the tyrant's law. Law is the projection of an imagined future upon reality. Martyrs require that any future they possess will be on the terms of the law to which they are committed (God's law). And the miracle of the suffering of the martyrs is their insistence on the law to which they are committed, even in the face of world-destroying pain.9 Their triumph-which may well be partly imaginary-is the imagined triumph of

the normative universe-of Torah, Nomos,-over the material world of death and pain. 10 Martyrdom is an extreme form of resistance to domination. As such it reminds us that the normative world-building which constitutes "Law" is never just a mental or spiritual act. A legal world is built only to the extent

that there are commitments that place bodies on the line. The torture of the martyr is an extreme and repulsive form of the organized violence of institutions. It reminds us that the interpretive commitments of officials are realized, indeed, in the flesh. As long as that is so, the interpretive commitments of a community which resists official law must also be realized in the flesh, even if it be the flesh of its own adherents.

Law Naturalizes OppressionThe legal system and the courts are primarily institutions designed to legitimize and naturalize domination and oppressions Peter Gabel ’84 Prof of Law, New college of california school of law “The mass psychology of the new federalism” 52 Geo. Wash. L. Rev. 263 1983-1984

Although I believe Blum's approach is much the best of the three, it shares a basic error with the other two: the failure to recognize that the Supreme Court is fundamentally a figment of the cultural imagination and that its true role is to be found not in the direct prac- tical consequences of the outcomes of its decisions - with the poli- tics of these outcomes being mystified by ideology - but rather in the ideology itself as a set of cultural images that are intended to give a false political legitimacy to the social order. Let me develop this idea and then return to Blum's analysis in order to reinterpret it in accordance with the view of the Court that I am proposing. Contemporary American society is a network of hierarchies within which people feel profoundly isolated from one another. Although we long to overcome the isolation and mutual distrust that characterizes hierarchical life, we are also afraid to make the attempt because from the vantage point of our distance from one another, the fragility of our common desire seems no match for the alienation that contains it. The risk of a humiliating and even violent rejection by others al- ways seems very great. Faced with this conflict, our history takes on the quality of a double-movement. Because of our fear, the hierarchies tend to reproduce themselves generation after generation in the form of class domination, racial and sexual oppression, and in many other ways that need not be reduced to these conventional categories, such as the teacher-student relationship. Yet, because of our desire to overcome the inhumanity and powerlessness inherent in these hierarchical conditions, we are continually forming into groups that challenge the way things are, in movements like the labor movement, or the civil-rights movement, or the women's movement, or in very disorganized ways as was the case for the 60s counter-culture. Sometimes direct force is used to suppress these challenges to the hierarchy-system, but it is much more effective for those who wish to maintain the status quo to get people to consent to it. To do this the conflict that is generated within the hierarchies must be continually mediated by people whose job it is to produce illusions about the justness of the existing order. One might describe such people as producers of false social mean-ing. In place of the painful absence of connectedness that is at the heart of people's actual experience of the hierarchical world, they convey false pictures of social life that attempt to provide people with a substitute and fantasy-based feeling of connection with others. This, it seems to me, is where the Supreme Court comes in. The objective of the Supreme Court is to pacify conflict through the mediation of a false social-meaning system, a set of ideas and images about the world which serve today as the secular equivalent of religious ideology in previous historical periods. Either a conflict is assimilated into an existing prevailing world-view, or the existing world- view accommodates itself somewhat to absorb the conflict.3 But in either case the objective is to maintain a relatively coherent, though false, sense of social-meaning and connection.

Judges are not instruments of order and logic, but distributors of pain, violence, and deathRobert Cover ’86 Professor law at Yale, “Violence and the Word” 95 Yale L.J. 1601 1985-1986

We begin, then, not with what the judges say, but with what they do. The judges deal pain and death.That is not all that they do. Perhaps that is not what they usually do. But they do deal death, and pain. From John Winthrop through Warren Burger they have sat atop a pyramid of violence, dealing .... In this they are different from poets, from critics, from artists. It will not do to insist on the violence of strong poetry, and strong poets. Even the violence of weak judges is utterly real-a naive but immediate reality, in need of no interpretation, no critic to reveal it.20 Every prisoner displays its mark. Whether or not the violence of judges is justified is not now the point-only that it exists in fact and differs from the violence that exists in literature or in the metaphoric characterizations of literary critics and philosophers. I have written elsewhere that judges of the state are juris- pathic-that they kill the diverse legal traditions that compete with the State.2 ' Here, however, I am not writing of the jurispathic quality of the office, but of its homicidal potential.The dual emphasis on the acts of judges and on the violence of these acts leads to consideration of three characteristics of the interpretive di- mension of judicial behavior. Legal interpretation is (1) a practical activ- ity, (2) designed to generate credible threats and actual deeds of violence, (3) in an effective way. In order to explore the unseverable connection between legal interpretation and violence, each of these three elements must be examined in turn.

Law is not Rational/Objective

The law is not the product of common meaning nor can it be used to achieve progressive ends – it is violence, not shared meaning or common principles, that make legal systems effectiveRobert Cover ’86 Professor law at Yale, “Violence and the Word” 95 Yale L.J. 1601 1985-1986

There is a worthy tradition that would have us hear the judge as a voice of reason; see her as the embodiment of principle. The current academic interest in interpretation, the attention to community of meaning and commitment, is apologetic neither in its intent or effect. The trend is, by and large, an attempt to hold a worthy ideal before what all would agree is an unredeemed reality. I would not quarrel with the impulse that leads us to this form of criticism. There is, however, danger in forgetting the limits which are intrinsic to this activity of legal interpretation; in exaggerating the extent to which any interpretation rendered as part of the act of state violence can ever constitute a common and coherent meaning. I have emphasized two rather different kinds of limits to the commonality and coherence of meaning that can be achieved. One kind of limit is a practical one which follows from the social organization of legal violence. We have seen that in order to do that violence safely and effectively, responsibility for the violence must be shared; law must operate as a system of cues and signals to many actors who would otherwise be unwilling, incapable or irresponsible in their violent acts. This social organization of violence manifests itself in the secondary rules and principles which generally ensure that no single mind and no single will can generate the violent outcomes that follow from interpretive commitments. No single individual can render any interpretation operative as law-as authority for the violent act. While a convergence of understandings on the part of all relevant legal actors is not

necessarily impossible, it is, in fact, very unlikely. And, of course, we can not flee from the multiplicity of minds and voices that the social organization of law-as-violence requires to some hypothetical decision process that would aggregate the many voices into one. We know that-aside from dictatorship-there is no aggregation rule that will necessarily meet elementary conditions for rationality in the relationships among the social choices made. While our social decision rules cannot guarantee coherence and rationality of meaning, they can and do generate violent action which may well have a distinct coherent meaning for at least one of the relevant actors. We are left, then, in this actual world of the organization of law-as- violence with decisions whose meaning is not likely to be coherent if it is common, and not likely to be common if it is coherent. This practical, contingent limit upon. legal interpretation is, however, the less important and less profound of the two kinds of limits I have presented. For if we truly attend to legal interpretation as it is practiced on the field of fear, pain, and death, we find that the principal impediment to the achievement of common and coherent meaning is a necessary limit, intrinsic to the activity. Judges, officials, resisters, martyrs, wardens, convicts, may or may not share common texts; they may or may not share a common vocabulary, a common cultural store of gestures and rituals; they may or may not share a common philosophical framework. There will be in the immense human panorama a continuum of degrees of commonality in all of the above. But as long as legal interpretation is constitutive of violent behavior as well as meaning, as long as people are commit- ted to using or resisting the social organizations of violence in making their interpretations real, there will always be a tragic limit to the common meaning that can be achieved. The perpetrator and victim of organized violence will undergo achingly disparate

significant experiences. For the perpetrator, the pain and fear are remote, unreal, and largely unshared. They are, therefore, almost never made a part of the interpretive artifact, such as the judicial opinion. On the other hand, for those who impose the violence the justification is important, real and carefully cultivated. Conversely, for the victim, the justification for the violence recedes in reality and significance in proportion to the overwhelming reality of the pain and fear that is suffered. Between the idea and the reality of common meaning falls the shadow of the violence of law, itself.

Legal interpretation is never just about texts or language – legal interpretation requires a system of socially organized violence in order to be effective. The violence inherent in the law trumps any rational element. Robert Cover ’86 Professor law at Yale, “Violence and the Word” 95 Yale L.J. 1601 1985-1986

Legal interpretation, therefore, can never be "free;" it can never be the function of an understanding of the text or word alone. Nor can it be a simple function of what the interpreter conceives to be merely a reading of the "social text," a reading of all relevant social data. Legal interpretation must be capable of transforming itself into action; it must be capable of overcoming inhibitions against violence in order to generate its requisite deeds; it must be capable of massing a sufficient degree of violence to deter reprisal and revenge. In order to maintain these critical links to effective violent behavior, legal interpretation must reflexively consider its own social organization. In so reflecting, the interpreter thereby surrenders something of his independence of mind and autonomy of judgment, since the legal meaning that some hypothetical Hercules (Hyporcules) might construct out of the sea of our legal and social texts is only one element in the institutional practice we call law. Coherent legal meaning is an element in legal interpretation. But it is an element potentially in tension with the need to generate effective action in a violent context. And neither effective action nor coherent meaning can be maintained, separately or together, without an entire structure of social cooperation. Thus, legal interpretation is a form of bonded interpretation, bound at once to practical application (to the deeds it implies) and to the ecology of jurisdictional roles (the conditions of effective domination). The bonds are reciprocal. For the deeds of social violence as we know them also require that they be rendered intelligible-that they be both subject to interpretation and to the specialized and constrained forms of behavior that are "roles." And the behavior within roles that we expect can neither exist without the interpretations which explain the otherwise meaningless patterns of strong action and inaction, nor be intelligible without understanding the deeds they are designed to effectuate.Legal interpretation may be the act of judges or citizens, legislators or presidents, draft resisters or right-to-life protesters. Each kind of interpreter speaks from a distinct institutional location. Each has a differing perspective on factual and moral implications of any given understanding of the Constitution. The understanding of each will vary as roles and moral commitments vary. But considerations of word, deed, and role will always be present in some degree. The relationships among these three considerations are created by the practical, violent context of the practice of legal interpretation, and therefore constitute the most significant aspect of the legal interpretive process.

The law is political – it is not rational.Mark Tushnet ’5 Prof of Law at Harvard, formerly Georgetown. Father of Rebecca. “Critical Legal Theory” The Philosophy of Law and Legal Theory pp 80-90

The most general statement of critical legal theory was the slogan, ‘‘Law is politics’ ’ (Kairys 1982). This

meant several things. First, the methods of legal reasoning were, in the end, in- distinguishable from the methods of political ar- gument: analysis would show that what legal theorists presented as distinctively legal argu-

ments were reducible to arguments commonly made in general political discourse. Second, dis- putes within law were resolved in the same way that disputes within politics were resolved, by some fairly messy combination of coercion and reasoned argument, rather than by reason alone (as they understood their seniors to claim). Im- portantly, the claim was not that law, like politics, was a domain of coercion pure and simple; rather, it was that both domains mixed coercion and reason. This part of the claim about law and pol- itics thus connected critical legal theory to trad- itional jurisprudential concerns about the relation between law and morality, although the connec tion was weak and never

became a focus of atten- tion within the work of critical legal theorists. Third, and perhaps most obvious, just as in politics we do not expect disagreement to disappear once some provisional resolution of a problem is located, so too in law we should not expect dis- agreement to disappear once an apparently authoritative decision has been rendered. Critical legal theory drew from American legal realism the perception that an account of law must combine analysis of legal reasoning with social theory, loosely defined. See A M E R I C A N LEGAL REALISM. The legal realists had found themselves confronting what they, or at least their successors, described as a conceptualistic formalism, in which verbal formulations of rules were to be interpreted in ways that resolved con- crete controversies. For the legal realists, formal- ism meant that legal rules could be justified by deduction from self-evident first principles. (To the extent that those principles are moral prin- ciples, the legal realists’ understanding of formal- ism is loosely related to more contemporary definitions of formalism, which assert that the legal system has an immanent moral rationality.) Critical legal theorists appreciated – and

perhaps may be said to have appropriated – the legal realists’ rule-skepticism as a response to formalism. By examining the relation between particular rules and concrete problems, rule skeptics argued that the rules actually did not provide conclusive answers to any legal dispute; the formalist prom- ise that answers could be deduced from agreed- upon premises failed, according to the legal real- ists, because alternative interpretations of agreed- upon rules, defensible by accepted methods of legal reasoning, were ordinarily available to support quite diverse outcomes. Critical legal theorists confronted versions of formalism that had arisen after the legal realists developed their rule-skepticism, notably the legal-process school and the Chicago style of law-and-economics scholarship that played a large role in the legal academy when critical legal theory began to be developed. But, the critical legal theorists believed, legal-process theory re- produced formalism. Instead of deducing substantive rules from higher-level premises, legal- process theorists argued that legal tasks should be allocated to different institutions on the basis of higher-level principles identifying each institu- tion’s central characteristics. For critical legal the- orists, this simply shifted the level on which formalism occurred from substantive law to the questions of institutional design and procedure. The scientism of Chicago-style law-and-econom- ics was even more obviously formalistic; here sub- stantive legal rules were to be deduced from extremely thin assumptions about individual motivation and self-interest. Critical legal theorists also

appreciated the legal realists’ materialism. As the critical legal theorists read legal realism, rule-skepticism implied that one could not explain the outcomes actually reached in legal disputes by referring to the rules of law alone. Some social, not legal, theory would have to be invoked to explain outcomes. Again, as the critical theorists read legal

realism, the rele- vant social theory for legal realists was fundamen- tally materialist in a loosely Marxist sense: class interests explained why judges (and, even more obviously, legislators) reached the results they did . Critical legal theory modernized rule-skepti- cism, but probably did not add strikingly new arguments to the ones the legal realists had pro- duced. The situation was different with respect to the explanatory social theory, though. Critical legal theory combined, sometimes awkwardly, a phenomenological account of social action with elements of the humanist rather than determinist Marxism that had become fashionable on the left in the 1960s and early 1970s.

Neither the law nor any system of rights are rational – they are systems of oppression that disguise their true nature under the guise of rational decision makingPeter Gabel ’84 Prof of Law, New college of california school of law “Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves” 62 Tex. L. Rev. 1563 (1983-1984)

Yet this description of reification is perhaps itself somewhat reified to the degree that it places too little emphasis on the emotional strain required to believe that something unreal is real,30 and by reminding ourselves of the nature and source of this strain we can come to see the link between reification and indeterminacy. For reification is not a mere abstract characteristic of legal thought; it is lived as a difficult effort to keep out of awareness an underlying existential conflict be- tween the desire for connection and the felt need to deny this desire. One aspect of this effort involves repression: we keep the conflict out of awareness by treating existing reality as fixed and embracing this idea with passion. 3 1 But a second aspect involves substitute gratifica- tion: we keep the conflict out of awareness by anxiously "keeping up" our absorption in the fantasies of substitute connection provided by the utopian imagery of legal thought. The carrying out of this second as- pect requires that the cognitive or surface meanings of legal concepts be infinitely malleable because they are created and "believed in" precisely in order to resist (or to keep out of awareness) the underlying meaning that desire has in mind for them. In other words, for substi ute gratifications to secure their substitute or unrealized character, the rights which embody them must be suspended in a permanent state of abstraction. They must be able to mean anything at the surface level in order that they not mean anything at the underlying level, where the desire for freedom and equality, for example, is embroiled in conflict. Thus the indeterminacy of what any right "really means concretely" results from our very intention that it should not mean anything con- crete (or to put this more precisely, that it should not mean what it means). This idea that substitutive fantasies involve a constant jug- gling act in which conflictual wishes are perpetually kept out of aware- ness through the use of displacing imagery is a common theme in psychoanalysis-a child will allow his dream-thoughts to wander over an infinite series of symbolic objects in order not to think of his mother's breast.32 If indeterminacy is therefore an existential constituent of existing legal thought, intentionally produced in order to secure the substitute connection of our withdrawn selves (as well as the anonymity or un- groundedness of our role-performances), then the value of a critique which demonstrates this indeterminacy must be limited to delegitimiz- ing the apparently determinate character that rights-thinking acquires through reification. Without negating the importance of this activity, I think it is nonetheless essential to recognize its paradoxical nature, be- cause the critique itself presupposes that rights-thinking does not actu- ally have to be determinate in order to convince those who intend to be convinced by it. In fact, just the opposite is the case if, as I believe, this thought is intentionally constructed to be both indeterminate and yet apparently determinate at the same time. The real question is how to make sense of this paradox-how does consciousness manage to play this trick on itself without being aware that it is doing so? To answer this question, we must recall that the feeling of substitute connection which makes legal thought partially gratifying is generated not by the rational or manifest content of rights, but by their latent content as unconscious fantasies. In other words, it is the fantasy of real freedom embedded in the idea of "freedom of contract" that accounts for our

being attached to it (and "attached" through it), rather than any deep loyalty we have to the supposed set of "rational outcomes" that the right to freedom of contract "entails." If the reification of legal reason- ing, and thus its apparent determinacy, derives from this emotional at- tachment to its latent content, then we can see quite clearly how reification and indeterminacy not only can coexist but also work to- gether. Indeterminacy allows rights to possess an infinite number of surface meanings that serve (through a kind of perpetual flight into abstraction) to protect their fantastic nature from the call of desire to give them a realized meaning. Reification allows us to believe in the determinacy of any of these surface meanings through our very attach- ment to the fantasy of connection that each provides. As a conse- quence, the law does not have to be "really" rational for people to believe in it-in fact, this very "belief' is sustained by its nonrational or indeterminate quality.

Law is indeterminate

Legal propositions are indeterminate – arguments can be found to support any outcome or meaningMark Tushnet ’83 Prof of Law at Harvard, formerly Georgetown. Father of Rebecca. 16 QLR 339 (1996-1997) “Defending the Indeterminacy Thesis”

As I take the indeterminacy thesis, a proposition of law (or legal proposition) is indeterminate if the materials of

legal analysis-the ac- cepted sources of law and the accepted methods of working with those sources such as

deduction and analogy-are insufficient to resolve the question, "Is this proposition or its denial a correct statement of the law?" If a litigated case turns on an indeterminate legal proposition, a result favoring either the plaintiff or the defendant is

equally well- supported by the legal materials.'0 The indeterminacy thesis is simple to state: Across an analytically interesting range of "cases" or legal events, legal propositions are indeterminate." This is not a claim

about the degree of controversy over the right outcome, or about the difficulty of discerning that outcome. The indeterminacy thesis asserts that no matter how hard one tries, or how skilled one is as a lawyer, legal propositions in the relevant range are in- determinate . Most discussions of the indeterminacy thesis identify some com- mon ground between its proponents and its critics. Nearly everyone agrees that some legal propositions are indeterminate. Typical examples include highly contentious Supreme Court decisions interpreting the Constitution. Where the Court persistently divides five-to-four over some proposition, it seems fair to call the proposition indeterminate. The indeterminacy thesis holds, then, within some domain. If that do- main is small enough, though, nothing interesting about the rule of law follows. To be interesting, the indeterminacy thesis must include a "fair amount" of legal propositions. Sometimes, in unguarded moments, people will assert-then quickly withdraw the assertion-that the domain of indeterminacy does not exist at all. Controversy and division within the Supreme Court, af- ter all, might not result from the Constitution's indeterminacy. The jus- tices might not have had time to work out all the difficult problems as- sociated with the relevant legal materials, for example. But, in the fullness of time (and aided by critical commentary from legal academ- ics), we will know the right answer to any constitutional question. And if we can know the answer there, surely we can know the answers any- where in the law. This is to assert that legal materials provide one right answer for every contestable legal proposition. At one point Ronald Dworkin made that claim. 2 Dworkin's argument, however, was restricted enough that, even if accepted, it does not threaten the indeterminacy thesis. To es- 3 tablish his claim, Dworkin had to posit a judge who he called Hercules.1 The name indicated that such a judge, with all the skill over the materi- als of law one could demand, could always arrive at the right answer to any legal question.'4 Put this way, Dworkin's is a claim about the on- tology of law, asserting that all legal propositions are in some sense true or false. It says nothing about whether real judges can arrive at the right answer in any case. And, because the indeterminacy thesis is connected to claims about the democratic legitimacy of law in real societies, Dworkin's conceptual point does not impair it. And, to the extent that the indeterminacy thesis deals with informal

political theory, what matters is what happens in law as it is practiced. More threatening to the indeterminacy thesis are examples of clearly determinate legal propositions. Standard examples are: "Litigants named Tushnet always lose"; "Under the present United States Consti- tution no person may become president who is under 35 years of age"; "Under the present United States Constitution the president may not dis- approve-veto--a single item in an appropriations bill passed by the Senate and the House of Representatives." The first (hypothetical) legal proposition is determinate because we know that, were it part of the law, I would lose any case in which I was a plaintiff or defendant. The other propositions are assertions about the meaning of the present United States Constitution. Another version of this sort of criticism of indeter- minacy claims points to the large proportion of cases decided unani- mously by appellate courts and reports by judges that they find serious legal questions in only a small proportion of the cases they have to de- cide. If the propositions offered as examples are indeed determinate, or if judicial unanimity establishes determinacy, the domain of the indeter- minacy thesis might be quite small. These examples of determinacy do not actually impair the indeterminacy thesis because they do not signifi- cantly restrict the thesis's domain, when the thesis is properly under- stood. And, defining the proper domain of the thesis and explaining why indeterminacy occurs will put in question the

apparent determinacy of even these propositions. The indeterminacy thesis's domain is this (or some roughly

equivalent variant): Every legal proposition that a lawyer would find professionally respectable to assert is indeterminate. 5 Identifying the domain in this way points toward why the indeterminacy thesis has implications for democratic legitimacy. It makes the professional judg- ment of lawyers crucial to the thesis.'6 And, in ways explored in more detail later, lawyers are a "class" or social group whose judgments need not indicate that arguments lawyers do not make are frivolous in some deep sense. The fact that the profession and the social groups with which it is associated screen out some claims from professional respect- ability does not mean that those claims lack social significance.17 The undeniable fact

that no one raises claims in connection with many "legal events"-stopping at a stop sign, paying the sales tax on clothing pur- chases-therefore, does not undermine the indeterminacy thesis, unless raising claims about them could not possibly fall within the range of professionally respectable argument.

Rights BadRights bad – they are used for conservative ends by conservative judges, generate opposition, and rely too heavily on individualistic assumptionsMark Tushnet ’5 Prof of Law at Harvard, formerly Georgetown. Father of Rebecca. “Critical Legal Theory” The Philosophy of Law and Legal Theory pp 80-90

The indeterminacy thesis and the phenomenological arguments about the ways in which people created images of legality to reconcile themselves with their social positions combined in one of early critical legal theory’s most controversial claims, described as the critique of rights (Tushnet 1984). Critical legal theory was created after the US Supreme Court had begun to repudiate its earlier interventions on behalf of liberal interests in cases involving race and social welfare. Those interventions remained important in the legal academy’s understanding of the possibilities of legal, and particularly judicial, action in support of progressive visions of social justice. Among those possibilities was the use of the legal system to vindicate rights – moral, constitutional, and other – on behalf of socially subordinated groups. Brown v. Board of Education (1954), the desegre- gation decision, and Roe v. Wade (1973), the abortion decision, loomed large in the minds of progressive legal scholars. The critique of rights posed a sharp challenge to the prevailing image of legal possibility. It seemed to place Brown and Roe in question, suggesting that these triumphs of liberal legal activism were somehow inconsistent with en- during achievements for progressive law and politics. The critique of rights questioned the utility of making claims of legal right on a number of grounds. First, the indeterminacy thesis suggested to critical legal scholars that rights-claims were a double-edged sword. There was no reason to suppose, they argued, that courts would vindi- cate only rights-claims made by subordinated groups. Seeing hints in the late 1970s and early 1980s of possibilities that came to fruition in the 1990s, the critique of rights worried that strong defenses of courts as rights-protectors would turn against progressives when the courts started to vindicate the rights of whites in affirmative action cases, and property owners in cases involving claims that government regulation amounted to a taking of primate property. Second, the critique of rights found in the slogan, ‘‘Law is politics,’’ another danger in reli- ance on rights-claims in the judicial arena. Such claims could trigger counter-claims of right- invasion by political opponents. More important, framing political claims in legal terms naturally induced activists to seek redress in courts, dimin- ishing the attention they could devote to other arenas of political action such as legislatures and the streets. But, courts were not a reliable source of rights-protection. Even when courts took the progressive side in identifying rights-violations, actually implementing the courts’ decisions required a mobilized political community whose development might have been impaired by the dominance of lawyers pursuing the rights strategy. Third, the critical legal scholars’ phenomenology led them to believe that, at least in the context of the United States in the late twentieth century, claims about rights were likely to re- inforce an individualism that they believed stood in the way of developing community solidarities that could generate more substantial progressive change. The dominant concepts in constitutional law in particular were strongly individualist. The rhetoric of Brown focused on the rights of each individual African American child to attend school without regard to his or her race; Roe relied on an earlier case saying, ‘‘If the right of privacy means anything, it is the right of the indi- vidual . . . to be free

from unwarranted govern- mental intrusion’’ (Eisenstadt v. Baird, 1972). Critical legal theorists believed that the individu- alism of a rights-based strategy occluded the underlying social conditions, including social mobilization, that actually induced courts to recognize rights. Related to this last point was a fourth one, deriving from the phenomenological social theory. Rights-strategies on behalf of progressive interests took advantage of, but were also infected by, the prevailing view of people as individuals with rights that resided in themselves as em- bodied persons, a view most obviously compat- ible with the claims of women in the abortion cases. But, the critique of rights argued, rights- claims were made against the state, and led people to experience rights as something conferred on them by a fantasized ‘‘state’’ rather than as a set of lived experiences arising out of social relations of a particular sort. The critique of rights elicited a strong reaction from minority legal scholars who were part of the rough social formation – leftist, non-liberal legal theorists – that included the early critical legal scholars (Williams 1987). The minority response was that the critique of rights undervalued the contribution rights-claims had made to reducing social subordination and, perhaps more import- ant, failed to take account of the ways in which judicial recognition of rights provided minority communities with a sense of full membership in the nation even if the rights were imperfectly implemented. The latter point, if not the former, was actually compatible with the indeterminacy thesis and, indeed, with the critique of rights itself, and this aspect of the minority response to early critical legal theory became an accepted part of critical legal theory generally.

Aff Answers

PermutationThe permutation solves – we can use the plan as a way to make privacy less individualistic and more collective. Privacy as a concept can be reformed very easilyColin J. Bennett 11, Professor of political science at University of Victoria, British Columbia, 2011, “In Defence of Privacy: The concept and regime,” Surveillance and Society 8-4, http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/4184/4186

The individualistic conceptions of privacy, however, hardly constitute a paradigmatic understanding of the problem, and there have been a number of attempts to realign the issue in ways that perhaps hold more contemporary relevance. Most prominently, Priscilla Regan has argued that privacy should be seen as a common value, ‘in that all individuals value some degree of privacy and have some common conceptions about privacy’. It is a public value, ‘in that it has value not just to the individual...but also to the democratic political system’. And it is a collective value, ‘in that technology and market forces are making it hard for any one person to have privacy without all persons having a similar minimum level of privacy’ (Regan 1995, 213). Her analysis suggests that privacy, framed in individualistic terms, is always on the defensive against arguments for the social benefits of surveillance. Privacy will always be in conflict with those social and collective issues, which tend to motivate mass publics and their representatives. We must, therefore, frame the question in social terms, because society is better off if individuals have greater levels of privacy.

In a similar vein, Valerie Steeves has recently attempted to reconceptualize privacy ‘as a dynamic process of negotiating personal boundaries in intersubjective relations...By placing privacy in the social context of intersubjectivity, privacy can be more fully understood as a social construction that we create as we negotiate our relations with others on a daily basis’ (Steeves 2008, 193). The critique also appears in analyses of particular surveillance practices. Jane Bailey and Ian Kerr, for instance, have analyzed the continuous archival and retrieval of personal experiences (CARPE) and concluded that the ‘individualistic conception of privacy that predominates western thinking, is nevertheless inadequate in terms of recognizing the effect of individual uptake of these kinds of technologies on the level of privacy we are all collectively entitled to expect’ (Bailey and Kerr 2007).

Moreover, recognition of the social value of privacy is increasingly observed in the legal and policy world. One of the earliest and most influential reports on privacy protection was produced in the mid- 1970s in the United States. The Privacy Protection Study Commission was established under the 1974 Privacy Act, and had some influence on setting US privacy protection policy along a different track from that followed in Europe and other countries. It began, however, by pointing out that: ‘A major theme of this report is that privacy, both as a societal value and as an individual interest, does not and cannot exist in a vacuum. Indeed, ‘privacy’ is a poor label for many of the issues the Commission addresses because, to many people, the concept connotes isolation and secrecy, whereas the relationships the Commission is concerned with are inherently social’ (United States PPSC 1977, 21, my emphasis).

The perm solves best – neoliberalism is not a monolithic evil, but a series of multiple, contradictory processes. The plan be harnassed as part of the effort to restrain the bad parts of neoliberalismClive Barnett, Faculty of Social Sciences at The Open University, PUBLICS AND MARKETS What’s wrong with Neoliberalism?, http://www.open.ac.uk/socialsciences/emergentpublics/publications/barnett_publicsandmarkets.pdf

What’s really wrong with neoliberalism, for critics who have constructed it as a coherent object of analysis, is the unleashing of destructive pathologies through the combined withdrawal of the state and the unfettered growth of market exchange. ‘Individual freedom’ is presented as a medium of uninhibited hedonism, which if given too much free reign undermines the ascetic virtues of self-denial upon which struggles for ‘social justice’ are supposed to depend. Underwritten by simplistic moral

denunciations of ‘the market’, these theories cover over a series of analytic, explanatory, and normative questions. In the case of both the Marxist narrative of neoliberalization, and the Foucauldian analysis of neoliberal governmentality, it remains unclear whether either tradition can provide adequate resources for thinking about the practical problems of democracy, rights and social justice. This is not helped by the systematic denigration in both lines of thought of ‘liberalism’, a catch-all term used with little discrimination. There is a tendency to present neoliberalism as the natural end-point or rolling-out of a longer tradition of liberal thought – an argument only sustainable through the implicit invocation

of some notion of a liberal ‘episteme’ covering all varieties and providing a core of meaning. One of the lessons drawn by diverse strands of radical political theory from the experience of twentieth-century history is that struggles for social justice can create new forms of domination and inequality . It is this that leads

to a grudging appreciation of liberalism as a potential source for insight into the politics of pluralistic associational life. The cost of the careless disregard for ‘actually existing liberalisms’ is to remain blind to the diverse strands of egalitarian thought about the relationships between democracy, rights and social justice that one finds in, for example: post-Rawslian political philosophy; post-Habermasian theories of democracy, including their feminist variants; various postcolonial liberalisms; the flowering of agonistic liberalisms and theories of radical

democracy; and the revival of republican theories of democracy, freedom, and justice. No doubt theorists of neoliberalism would see all this as hopelessly trapped within the ‘neoliberal frame’ of individualism, although if one takes this argument to its logical conclusion, even Marx’s critique of capitalist exploitation, dependent as it is on an ideal of selfownership, is nothing more than a variation on Lockean individual rights.

While some tradeoff between rights and safety is inevitable in civil society however only beginning by engaging with and attempting to work with the legal system can we please both sides of the discussionAmitai Etzioni 99, University Professor at the George Washington University, “The Limits of Privacy”, 1999, Basic Books (e-book), Pg 22-23

“ The challenge of carefully crafting a balance between the common good and individual rights , between public health, public safety, and privacy, is particularly keen if the balance sought is to be achieved not merely within the context of some abstract theory or model , but in the context of specific historical and social conditions of a real , existing society . The question I raise in practically every lecture I deliver on the subject is: How is one to determine whether the existing relationship between privacy and the common good (or between privacy

as one good and other common goods) is out of kilter, and if it is, what ought to be done to correct the imbalance? In the following pages I suggest four criteria that can help to determine whether an imbalance exists, in which direction society is tilting, the scope of corrective action called for, and the specific qualities of the correctives to be employed. They are applied to each of the five public policies under review here. Even those who do not share the approach to privacy advanced in this book may well find these criteria of interest in the study of other matters of public policy, legal doctrine “, and civic culture. (Previous presentations and applications of these criteria have been received favorably.28) Indeed, even if the common good could somehow overnight be well protected in all the areas under study-if there were no more pedophiles, no infants born with HIV, no criminals hiding behind false IDs, and no terrorists exchanging unbreakable encrypted messages-the following analysis would still apply. The specific studies of public policy, aside from whatever light they cast on the measures needed to improve the ways we protect public safety and health, also seek to illustrate a mode of policy analysis that encompasses ethical, legal, and practical considerations in the quest for a better society.” “Much of the discussion reflects a pivotal fact about society : Unlike ideologies , which can be centered on one core value , society cannot but serve multiple needs and wants . This fact has an important consequence that deserves much more attention: Societies typically cannot make perfect choices , because often they must sacrifice some measure of one good for the sake of another. Indeed, much of what is under discussion here concerns trade-offs between privacy and the common good. I like to observe, however, that trade-offs are not always necessary. Indeed, the discussion of most privacy issues should start with a quest for policie s or laws that could enhance both goods . One brief example: A kit that allows individuals to determine their HIV status in ” “the privacy of their own home was developed in 1985. The kit entails no visit to a doctor's office or clinic, no filling out of forms or computer entries. Users can mail in a few drops of blood and a code name and then call for the results. Aside from providing more privacy than had been previously available, the kit also advances public health by offering those reluctant to be tested in a less private place an opportunity to learn their IIIV status. One notes with some sadness that the politics of privacy are such that even this very simple kit was bottled up in the Food and Drug Administration (FDA) for seven years before it was finally approved.29”

Perm Solves LiberalismLiberalism can be improved from within – focusing on individual emancipation is keyAlan Hunt ‘86, professor of Sociology and Law at Carleton University, “The Theory of Critical Legal Studies”, Oxford Journal of Legal Studies, 1986, http://www.academia.edu/8509655/THE_THEORY_OF_CRITICAL_LEGAL_STUDIES

The critique of orthodox legal scholarship draws upon a more generalized critique of liberalism and thus constitutes one of the major points of unification of critical legal studies. The core of this critique is the contention that the claim made by liberalism to resolve the persistent and systematic conflict between individual and social interests through the mechanism of objective rules within a framework of procedural justice is inherently flawed. Mediation between conflicting interests at best offers only a pragmatic response to social conflict which can achieve nothing other than a set of results which reflects the unequal distribution of power and resources whilst claiming to act in the name of a set of universal social values. Critical legal theory thus grounds itself on the critique of∂ the historical project of the Enlightment which is perceived as offering a rationalist and consensual solution to the problem of social order.” It is in this context that I suggest that we can understand the ambiguous relationship between Roberto Unger and the critical legal studies movement. Unger provides a general theoretical critique of liberalism whilst at the same time insisting upon the inadequacies of the existing alternatives, the 'secular doctrines of emancipation’, of which Marxist socialism is the most important. I suggest that sense can be made of Unger’s relationship with critical legal studies by recognizing that he provides a coherent critique of liberalism which is widely invoked by critical legal authors. But there is only a very limited acceptance of Unger’s own prescription for transcending liberalism, His alternative is itself a 'superliberalism’ which stands close to the liberal tradition and holds out the promise of realizing the prospect of individual emancipation which liberalism itself has proved incapable of delivering, Unger himself is explicit, his alternative represents a superliberalism. It pushes the liberal premises about state and society. about freedom and dependence and governance of social relations by the will, to the point at which they merge into a larger ambition: the building of a social world less alien ..,. [lt] represents an effort to make social life resemble more closely what politics (narrowly and traditionally defined) are already largely like in the liberal democracies: a series of conflicts and deals among more or less transitory and fragmentary groups.” lt is important to emphasize that it is *liberalism* as an intellectual construct rather than as an historically grounded system of social relationships which is the subject of this critique. Unger himself recognizes that his general critique 'treats liberal doctrine as a set of interlocking conceptions whose relationship to society is disregarded. The study of the internal structure of the theory has been pursued at the cost of an awareness of theory‘s social significance.”

Privacy Good – Human RightsThe aff’s defense of a right to privacy is key to human rights—turns the KGeorge Kateb 01, William Nelson Cromwell Professor of Politics, Emeritus, at Princeton University, Spring 2001, “On Being Watched and Known,” Social Research 68-1, http://www.jstor.org/stable/40971451

Now if people, by some chance, do not complain when their rights appear, in the judgment of the observer, to be violated, or if they consider the matter insignificant, or even think that they deserve to be treated as they have been treated, the spirit of the laws - if I may reify - would admonish them. It would say that when a person is treated in certain ways, even if the harm is not felt as harm or felt at all, that person has nevertheless been harmed. A person is obliged to guard his or her rights by knowing when they are violated, or suspecting that they may have been, even in the absence of a judicial declaration

to that effect. Every citizen must be extremely sensitive to actual or threatened or even arguable violations. That is the heart of democratic citizenship. By guarding one's rights, one is guarding not only one's own vital interests, but by the force of example or precedent, the vital interests of everyone else. In that sense, we are each other's keepers. Every valid assertion that my right has been infringed is simultaneously the same assertion on behalf of everyone else. Basic rights are general possessions. There is a further complication.

By guarding one's rights, one is also guarding one's own personhood or human status as well as everyone else's. (Personhood and human status are rough synonyms.) I mean to say that every violation of a basic right, just by being the suppression of a vital claim or interest, is also a failure to respect the personhood of a human being. In being improperly coerced, a person is also being held in contempt. A person is being treated, say, as if he or she were a child rather than an adult, or were a mere means to an end; or has forfeited all rights because of some offense. These forms of contempt are injuries or insults to persons and should register as an additional harm.

Every basic right thus has a double meaning. The spirit of the laws - that is, the spirit of the U.S. Constitution and other comparable charters - reveres personhood, reveres the human status of every individual. Indeed, the substance of specific basic rights, such as free speech and religion, or the prohibition of self-incrimination and double jeopardy as well as, of course, the various rights clustered in the idea of the right of privacy, may be said to derive from an initial idea of personhood. Or if the practice of a given right preceded the articulation of the idea of personhood, then it is this idea that provided the rationale for the right when, for example, the codification we know as the Bill of Rights was framed, and that still provides the deepest reason for it.

Privacy Good - DemocracyProtecting privacy is key to democracyGeorge Kateb 01, William Nelson Cromwell Professor of Politics, Emeritus, at Princeton University, Spring 2001, “On Being Watched and Known,” Social Research 68-1, http://www.jstor.org/stable/40971451

The third consideration is the overall inequality or asymmetry that is inherent in the situation. The world is divided between those who watch and know and those who are watched and known. Even without sinister purposes, those who watch and know are able to objectify the rest. Knowing that one is being objectified, one should feel that an attempt has been made to diminish oneself. Before one tries to rise above

objectification, one should see it for what it is. Each of us is treated like a lab animal, a creature that excites the curiosity and probably the desire for further techniques and projects of those immersed in the process of watching and knowing.

This last consideration is the most comprehensive: that the new and ever more numerous techniques of watching and knowing human beings - and they are, with a cruel irony, most advanced in constitutional democracies - can lead to a fundamental revision in a person's self-conception. The revision is sharply at odds with the self-conception that a democratic individual, a democratic citizen, should have, and has so far usually had. In a constitutional democracy, in which everyone is guaranteed certain basic individual rights, personal and political, a sense builds up of oneself as precious, as a whole world, as an end in oneself. I have already referred to the idea that rights aim at denying the state the power and authority to treat adults as if they were children or to reduce them to mere means, mere instruments or machines. Part of the built-up sense yields the thought and corresponding sentiment that one owns oneself, which means that one is not owned by the state or by some superior caste or by society as an abstract entity. One is enabled to freely treat oneself as autonomous, to an important extent

and in many respects. Woven into that notion of self-ownership and in the cognate of autonomy is that one is inviolable. That means not only that a person should not be invaded by forces that try to use him for purposes not his own, but also that we should think of a person as having boundaries that should not be breached.

Privacy Good – Mass IncarcerationValuing privacy is key to solving mass incarceration—protects against self-incrimination George Kateb 01, William Nelson Cromwell Professor of Politics, Emeritus, at Princeton University, Spring 2001, “On Being Watched and Known,” Social Research 68-1, http://www.jstor.org/stable/40971451

On the specific matter of being known in accumulated detail that is instantly retrievable, and transferable to who knows how many agencies and groups and for who knows what purposes, two other consequences are worth mentioning. The first is that accumulated detail about people has the effect of defining them and locking them in that definition. The identity of each is

established by imputation, and the identity is equated with an exhaustive account. A person is thought to be known through and through, and without appeal, until perhaps that person has to mount a legal or political challenge to that assumption. The second consequence is that a detailed record follows a person through life, growing old with him or her, yet not losing memory as the person does. A person will not be able to start life over again, free of some of time's filthy load. A person cannot run away or hide, unless prepared to abandon everything familiar and find some alien refuge. There is no escape from a recorded identity, no escape from deeds done long ago that, if wrong, were paid for, or were not wrong but somehow technically incorrect or forgivably careless.

There is no doubt that the storage and dissemination by police agencies of lifetime records improve the capacity of these agencies to determine the identity of criminals with greater certainty. Not so long ago, The New York Times (March 3, 1999, p. B3) published an account of how a man who was later accused

of murdering three people betrayed himself when he was arrested in an unrelated misdemeanor theft case. Detectives had the man, already suspected of murder, unknowingly provide a DNA sample just by drinking from a soda bottle or glass. He was charged with murder on the basis of DNA obtained from his saliva sample.

I am happy that a murderer was caught. But the story of his self-incrimination distresses me. Not only may the spirit of the Fifth Amendment have been violated by the police technique, but the power of other new techniques that seduce an individual into giving himself away is alarming. This is being watched and known in an extended sense. I think that the greater ease of tracking down criminals through new techniques may reach the point where the struggle against crime has tilted so far in favor of the police that the very texture of life in a supposedly free society is radically altered. I hazard to say that if criminals were always caught, especially with their own cooperation, so to speak, we would no longer be living in a free society, a society where the human status is paramount. What would become of the spirit of the Fourth and Fifth Amendments - these precious and, yes, counterintuitive amendments that mean as much to personhood as any other amendments in the Bill of Rights? Such a society is not yet a police-state, but it erects so sharp a division between the innocent and the guilty that the innocent become too grateful

that they are not guilty. They become too anxious to stay that way. There must be a blurred middle ground between guilt and innocence, if innocence is not to become too proud and hence censorious, and punitive or vindictive. Democracy is antithetical to moral rigor; the concept of individual human status cannot survive it. Not that there can ever be perfect deterrence: a new thrill is added to breaking the law when policing is armed with increasingly potent devices of watching and knowing. But the perfection of the apparatus signifies the willed diminishment of human beings.

We can be sure that authorities in the United States are working to achieve a world where

everyone at birth is fingerprinted and made to leave a DNA deposit, not only a world in which every communication is recorded and can be retrieved. What is left of respect for the human status in all this?

Privacy Good – InnovationPrivacy is key to innovation and freedom—Turns the K because innovation and freedom are prerequisites to solve Julie E. Cohen 12, Professor of Law at Georgetown University Law Center, November 5, 2012, “What Privacy is For,” Harvard Law Review Vol. 126, http://poseidon01.ssrn.com/delivery.php?ID=11406900900910311202802010208401410600404902008801209107307110211100811306701011002401811001706306204909711800610501812512500400804308802605207010411908009302605003501309608911107512100500411400008808900106712

When the predicate conditions for innovation are described in this way, the problem with characterizing privacy as anti-innovation

becomes clear: it is modulation, not privacy, that poses the greater threat to innovative practice. Regimes of pervasively distributed surveillance and modulation seek to mold individual preferences and behavior in ways that reduce the serendipity and the freedom to tinker on which innovation thrives. The suggestion that innovative activity will persist unchilled under conditions of pervasively distributed surveillance is simply silly; it derives rhetorical force from the cultural construct of the liberal subject, who can separate the act of creation from the fact of surveillance. As we have seen, though, that is an unsustainable fiction. The real, socially-constructed subject responds to surveillance quite differently—which is, of course, exactly why government and commercial entities

engage in it. Clearing the way for innovation requires clearing the way for innovative practice by real people, by preserving spaces within which critical self-determination and self-differentiation can occur and by opening physical spaces within which the everyday practice of tinkering can thrive.

Public/Private Divide GoodThe Public-Private distinction is essential to check the power of the state and to maintain the right to privacy and freedom. Gregory P. Magarian 04, professor of law at Villanova University, “The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate”, The George Washington Law Review, Volume 73 No. 1, November 2004, pg. 12-13

The public rights theory's emphasis on deliberative democracy makes the concept of personal integrity essential for expressive freedom . In order for the First Amendment to ensure robust democratic discourse , it must respect a zone of individual conscience that allows people to evaluate information, formulate ideas , and participate meaningfully in democratic processes . This conception of personal integrity embodies a functional corollary to the public rights theory's recognition of a public-private convergence. The public-private distinction should inform First Amendment analysis only to the extent the distinction serves the core First Amendment value of participatory democracy. Respecting a zone of individual conscience shields members of the political community from any conceivable First Amendment liability while also identifying them as First Amendment rights-holders. 329 The essential role of individual conscience in collective self-government is what puts the "rights" in the public rights First Amendment. The importance of allowing individuals to exercise their conscientious faculties in political processes precludes any First Amendment check on their treatment of others' speech. In contrast, nongovernmental institutions are not members of the political community, nor do they possess the similar sort of individual privacy interests predicated on the Due Process Clause, that can properly fend off constitutional claims in general.330 In fact, the economic power of many non- governmental institutions makes them significant threats to public rights of expressive freedom , 331 a fact that justifies courts in enjoining nongovernmental interference with political debate.332 That same economic power can transform institutions' First Amendment claims into weapons against government reforms designed to enrich and broaden political debate.333 As I disuss below, many nongovernmental institutions make sufficiently important contributions to democratic discourse to warrant protecting their expressive autonom y.334 Determining when to extend such protection , however , requires a nuanced functional analysis --not merely a reflex to slap the label "private" on any institution outside the government .

At: Privacy Bad - GenderA focus entirely on the negative aspects of this dichotomy on women obscures the positives. We must consider both ends of the spectrum before consider the alternative. KAREN ENGLE 99, Redford Professor in Law & Director at University of Texas at Austin, “AFTER THE COLLAPSE OF THE PUBLIC/PRIVATE DISTINCTION: STRATEGIZING WOMEN'S RIGHTS”, Strategizing Women's Rights Reconceiving Reality: Women and International Law, 1999, pg. 148

Just as there are advantages to the critiques , though, there are disadvantages . It is on the difficulties with the critiques that I concentrate, in an attempt to think about ways to strategize women's rights that take into account the multiple spaces (and spheres) in which women live. First, focusing so much on the ideology and on women's lives in what we see as the private realm has reified both the public and the private spheres . Even as the distinction has been collapsed, we still write and talk as though the categories mean something , and as though women really live in the "private" and need protection of international law there. Second (and at the risk of reifying the private), the critiques make us think of the unregulated private as something that is necessarily bad for women . We rarely look at the ways in which privacy (even if only because it seems the best available paradigm) is seen by at least some women to offer them protection. A number of examples immediately come to mind, each of which centers on women's bodies and, not surprisingly, on women's sexuality. The language of privacy, and sketching out zones of privacy, many would argue, is our best shot at legally theorizing women's sexuality. In United States legal jurisprudence, the First Amendment has been used to a similar end, as often seen in the debates about pornography.2"

The social provides a third sphere beyond the public and private that can help womenKaren V. Hansen 87, “Feminist Conceptions of Public and Private: A Critical Analysis”, Berkeley Journal of Sociology, Vol. 32, 1987, http://www.jstor.org/stable/41035361?seq=1#page_scan_tab_contents

The public/private categories are ubiquitous in social science , and indeed fundamental to philosophies of the nineteenth and twentieth centuries. This however, insufficiently addresses the complexity of women's experience without an additional category: "the social ." If we continue to ignore women's lived experience because it is "too complicated" for our conceptual categories we have failed as observers and analysts of society What is gained from examining the world through the prism of "the social" rather than the First, Arendt per- simply public/private? Deceptively characterized the modern industrial world as too complex to be captured by a simple dichotomy .In particular the, transfer of production outside the home changes the texture of family life as well as complicating the public arena. Second, these historical examples reveal "private" to be a misnomer when applied to nineteenth- century women's lives. Women did not exist in isolation nor were they concerned solely with "particular interests”. Louisa Chapman was involved in a had multiple work and friend relation-

community, ships, and was very concerned about her reputation. As Ryan so aptly put it, “A Sphere is nota Home." Louisa, like Martha Barrett and many others, was involved outside her home-church meetings, care for the sick, visiting , teaching Sabbath School, attending temperance lecture-in a way that could not accurately be called private. of social and alter the definitions of the other realms structure, accordingly". The social" is a distinct realm with its own regularities, processes and rules of behavior . "the social" allows us to reorient our and Finally, perspective, to see women's "social" activities as "work," weaving together the fabric of society , as Cott suggests . Building on the recent work of Micaeladi Leonardo and others we can expand our of understanding the "social" work of women beyond kin networks and look at the and Women's role within "the social" neighborhood village.71 sphere consists of mediating the various forces of society-tying the church to the household, to the individual to the collectivity. The ideas raised and evidence provided in this paper challenge the and usefulness of the divide as a model accuracy public/private for social organization. Although definitive historical answers are not yet developed, it is important to ask questions about the of these and how we appropriateness sociological categories, understand what men and women do. Rather than reject categorization as Pitkin advocates, I suggest we add a third category ", the social," ascribed Arendt. Both as a reinterpret meaning by and its theoretical advance and as a concrete historical phenomenon ", the social " informs our study of past and present . Since neither women nor men can be so we are bound to conduct a readily pigeonholed , careful review of lives as they were lived. The study of these people of 150 years ago fundamentally challenges the way we look at social structure and prompt students of contemporary social relations to re-examine our attachment to the less sophisticate dichotomy.

Privacy supports private propertyTARA J.RADIN and PATRICIA H. WERBANE 07, Doctoral Candidate and Ruffin Professor of Business Ethics at the Darden Graduate School of Business Administration at the University of Virginia, THE PUBLIC/PRIVATE DISTINCTION AND THE POLITICAL STATUS OF EMPLOYMENT”, American Business Law Journal, 22/9/2007, http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1714.1996.tb00699.x/full

The American economic system is based on private property , but it is often unclear where “private” property and ownership end and “public” property and ownership begin . “The process of drawing the line between private and public is neither natural nor automatic ,” asserts Alan Wolfe. “The line is drawn differently in different times and different places , and l aw, including corporate law , is one of the major mechanisms by which it is drawn. Within the workplace, ownership and control are often divided. Corporate assets are held by an ever- changing group of individual and institutional shareholders . It is no longer always true that owners exercise any real sense of control over their property and its management . Moreover , such complex property relationships are spelled out and guaranteed by the stat e. This has prompted at least one thinker to argue that “private property” should be defined as “certain patterns of human interaction underwritten by public power.”12 This fuzziness about the “privacy” of property is exacerbated by the way we use the term “public” in analyzing the status of businesses, and, in particular, corporations. For example, we distinguish between

privately -owned business corporations and government-owned or controlled, public institutions. Among those companies that are not government-owned , we distinguish between regulated “ public” utilities whose stock is owned by private individuals and institutions, “publicly held” corporations, those corporations whose stock is traded publicly, who are governed by special SEC regulations and whose financial statements are public knowledge, and privately-held corporations and entrepreneurships, companies and smaller businesses that are owned by an individual or group of individuals and not available for public stock purchase.

Neoliberalism Good – DemocracyNeoliberalism promotes a democracy where a marketplace of ideas will ensure reforms in the future Mike Doyle 11, Master's in Development Studies from the University of Cambridge, 4/12/11, “In Defense of Neoliberalism: Part III,” https://cambridgedevelopmentstudies.wordpress.com/2011/04/12/in-defense-of-neoliberalism-part-iii/

We have had many discussions about one of the central tenet s of liberalism: democracy. We have

debated whether it causes or is the cause of development. We talked about how efficient it is and whether it adequately addresses the needs of the very poor. However, I think we have glossed over one of the chief strengths of democracy: its ability to create a marketplace of ideas. In a democracy, new ideas have the ability to come into being, propagate, and put into practice. Just as evolution works to select the best traits to suit a given environment, so does the market place of ideas allow the best ideas to come to the fore. To be sure, this is a slow process full of trial and error, but it does allow societies to adapt effectively to an ever-changing environment. At the beginning of the paper, I talked about the dangers of an ossifying ideology. This danger takes on new heights in an intellectual environment where criticisms and views cannot be freely expressed. I believe the USSR collapsed precisely because there was not a fair exchange of ideas, it was not able to adapt until it was far to late. The following vignette is an example of what can happen when there is no marketplace for ideas:

After the reality of the devastation brought about by the Great Leap Forward came to Chairman Mao’s attention, he issued a very interesting statement. To paraphrase, he said that the great Chinese famine would have never occurred in a democracy because the devastation caused by the agricultural reform would have been brought to attention much earlier. Because there was no free press and tolerance of criticism was low, Chinese bureaucrats were able to keep publishing inflated numbers about rice production even though production had been falling. The Chinese government continued to believe these inflated projections until the truth could no longer be ignored. Unfortunately, 20 million people died before this happened. What is more unfortunate is that Mao did not continue his brief flirtation with democracy.

Markets Good – FreedomFree markets are prerequisites to political freedomMilton Friedman 82, Economist at the University of Chicago, Winner of the 1976 Nobel Memorial Prize in Economic Sciences, 1982, “Capitalism and Freedom,” pp. 15-17, http://www.pdf-archive.com/2011/12/28/friedman-milton-capitalism-and-freedom/friedman-milton-capitalism-and-freedom.pdf

Economic arrangements play a dual role in the promotion of a free society. On the one hand, freedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself. In the second place, economic freedom is also an indispensable means toward the achievement of political freedom.

The first of these roles of economic freedom needs special emphasis because intellectuals in particular have a strong bias against regarding this aspect of freedom as important. They tend to express contempt for what they regard as material aspects of life, and to regard their own pursuit of allegedly higher values as on a

different plane of significance and as deserving of special attention. For most citizens of the country, however, if not for the intellectual, the direct importance of economic freedom is at least comparable in significance to the indirect importance of economic freedom as a means to political freedom.

The citizen of Great Britain, who after World War II was not permitted to spend his vacation in the United States because of exchange control, was being deprived of an essential freedom no less than the citizen of the United States, who was denied the opportunity to spend his vacation in Russia because of his political views. The one was ostensibly an economic limitation on freedom and the other a political limitation, yet there is no essential difference between the two.

The citizen of the United States who is compelled by law to devote something like 10 per cent of his income to the purchase of a particular kind of retirement contract, administered by the government, is being deprived of a corresponding part of his personal freedom. How strongly this deprivation may be felt and its closeness to the deprivation of religious freedom, which all would regard as "civil" or "political" rather than "economic", were dramatized by an episode involving a group of farmers of the Amish sect. On grounds of principle, this group regarded compulsory federal old age programs as an infringement of their personal individual freedom and refused to pay taxes or accept benefits. As a result, some of their livestock were sold by auction in order to satisfy claims for social security levies. True, the number of citizens who regard compulsory old age insurance as a deprivation of freedom may be few, but the believer in freedom has never counted noses.

A citizen of the United States who under the laws of various states is not free to follow the occupation of his own choosing unless he can get a license for it, is likewise being deprived of an essential part of his freedom. So is the man who would like to exchange some of his goods with, say, a Swiss for a watch

but is prevented from doing so by a quota. So also is the Californian who was thrown into jail for selling Alka Seltzer at a price below that set by the manufacturer under so-called "fair trade" laws. So also is the farmer who cannot grow the amount of wheat he wants. And so on. Clearly, economic freedom, in and of itself, is an extremely important part of total freedom.

Viewed as a means to the end of political freedom, economic arrangements are important because of their effect on the

concentration or dispersion of power. The kind of economic organization that provides economic freedom directly, namely, competitive capitalism, also promotes political freedom because it separates economic power from political power and in this way enables the one to offset the other.

Historical evidence speaks with a single voice on the relation between political freedom and a free market. I know of no example in time or place of a society that has been marked by a large measure of political freedom, and that has not also used something comparable to a free market to organize the bulk of economic activity.

Because we live in a largely free society, we tend to forget how limited is the span of time and the part of the globe for which there has ever been anything like political freedom: the typical state of mankind is tyranny, servitude, and misery. The nineteenth century and early twentieth century in the Western world stand out as striking exceptions to the general trend of historical development. Political freedom in this instance clearly came along with the free market and the development of capitalist institutions. So also did political freedom in the golden age of Greece and in the early days of the Roman era.