88 Mark Washofsky

But does the law protect the“privacy” of the individual? No such tort existed in the common law tradition. True, there are laws governing libel and slander, but those torts deal with damage to one’s personal reputation and not with the feelings and emotions of the injured party.” Warren and Brandeis sought to establish that the law in fact does recognize a tort in the latter instance, a legal “right of privacy” enforceable through court action. Yet how does one prove the existence of a legal right that the law itself does not mention in any explicit way?

Warren and Brandeis began their search by presenting a controlling historical narrative,” a story of the law as a constantly developing entity.“Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.” Thus, in its primitive form, the law concerned itself with the narrowest conception of the classic rights of life, liberty, and property, protecting the individual exclusively against physical harm and battery. Eventually, as the law began to recognize“man’s spiritual nature... his feelings and his intellect,” the classic rights were broadened to cover intangible things. The law, in consideration of human sensibilities, came to provide protection against the fear of bodily injury as well as against injury itself; against nuisances, offensive noise, and noxious odors; against damage to reputation (libel and slander); and against wrongful appropriation of intangible and intellectual property.“The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.”

This historical record encourages leads the reader to one to the conclusion that the common law tradition has developed to the point where“the right to life has come to mean the right to enjoy

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