The Ethics of Banking: Conclusions from the Financial Crisis (Issues ...

Banking Secrecy, the Right to Privacy, and the State 113
Banking Secrecy, the Right to Privacy, and the State: Thoughts
on Political Philosophy
Banking secrecy is an integral component of protection of the private sphere. It is
a principle for the avoidance of envy and resentment, which should only be waived
in very well justified cases such as genuine evidence of tax evasion. If the state
conducts dragnet investigations and seeks to breach banking secrecy on the grounds
of very slender suspicions, it is overstepping the limitations imposed on the state
and jeopardizing the necessary distinction between the private and the public sphere.
The tax law of the state, contrary to widespread views, is not pre-eminent over the
right to privacy. There is, rather, a need to examine in each particular case whether
or not the state is entitled to breach banking secrecy and the right to protection of
the private sphere. This applies even in the present situation where sensitivities are
heightened by international terrorism and its international finance operations.
The protection of the private sphere, including banking secrecy, is aligned with
what is, in Western Europe, a deeply-rooted distinction between private and public,
which is a constant in the European history of ideas. The protection of banking
secrecy is a less momentous issue for the USA, a country not scarred to the same
degree as Europe by a history of authoritarian state interference in the private sphere.
The Dualism of Private and Public, of Society and State
The right to privacy operates not by the state conceding us the right to privacy, but
by the society of citizens granting the state rights of intervention, such as tax law,
in well-defined legal situations. The right to property ranks above the tax law of the
state, because tax is taken from the citizen’s lawfully acquired income and property.
Based on property law, banking secrecy is also protected from state intrusion. Only
in the face of compelling suspicions can banking secrecy be waived.
To return to Aristotle’s political philosophy, he makes the distinction between
the sphere of the political and public, the polis or city, and the sphere of the economic
and private, the oikos or household. He criticizes Plato’s theory developed
in his book Politeia, The State, which required the elimination of this distinction.
As we know, Plato was a proponent of the thesis that in the ideal state, the politeia,
there must be no distinction between private and public, oikonomia and politeia.
For the community, according to Plato, what matters most is that everything affects
everybody in the same way, without favor or distinction. If there is a private sphere,
however, some people will be more affected by whatever befalls the state than others
who can retreat into their private sphere.
This is one of the constantly recurring arguments against the right to privacy.
The upshot of privacy is that not everything political has exactly the same repercussions
for everyone. The right to privacy creates a private zone of protection and a
differentiation from the public arena. This right, by its very nature, is not equal in
its manifestation. Somebody who has a larger plot or apartment has a larger zone