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state, whether public or private, should be bound by and entitled to the benefit
of laws publicly made and publicly administered in the courts”.49 Chief
Justice Dickson of the Supreme Court of Canada added to this by saying:
“the law must stand supreme as the source and fabric of all social organization”.
50 That certainly adds to our understanding, but is that enough?
Robert Bolt’s great play, A Man for All Seasons,51 provides another answer.
There is a memorable scene in which Sir Thomas More is speaking with his
son-in-law, Roper. Roper says that he would set aside every law in England
to get at the Devil. More’s reply is apt and descriptive:
And when the last law was down, and the Devil turned around on you
where would you hide, Roper, the laws all being flat? This country’s
planted thick with laws—man’s laws, not God’s—and if you cut them down
do you really think you could stand upright in the winds that would blow
then? Yes, I’d give the Devil benefit of law for my own safety’s sake.52
The depth of those words was not lost on the American jurist Felix Frankfurter,
who saw the play late in life. When he heard More’s reply, Frankfurter
exclaimed “That’s it! That’s it!”53 Frankfurter immediately grasped
that More’s words went to the heart of our system of justice. He saw that the
words express the need for the existence of law to ensure order and fairness
in society. He saw that the words express the necessity of everyone being
equally subject to the law while, at the same time, having equal benefit of
the law. He saw that the words express that the laws are crafted by us. We
decide; they are not imposed on us. They are the product of our will, our
thinking, our creativity.
The development of independent and critically minded thinkers is contingent
on the availability of a protected core of privacy. Our ability to freely
develop our conscience is vital to the long-term sustenance of a vibrant
democracy and the rule of law.
ORWELL’S CAUTIONARY BELL
If we accept the premise that privacy is an essential value worth protecting,
we must consider how to safeguard our liberty interests in the face of modern
challenges. We must not remain complacent. The fundamental problem
is that the law has not kept pace with the development of technology.
One wonders if it ever can given the increasing pace at which technology
Decades ago, scholars and writers prophesized a dire state of affairs; few
were inclined to listen. In his famous work, Discipline and Punish,54 Michel
Foucault painted a picture of contemporary society that resembles George
Orwell’s Nineteen Eighty-Four. He spoke of Bentham’s panopticon, a circular