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

114 8 The “Banking Secret”, the Right to Privacy, and the Banks’ Duty to Confidentiality
of privacy than somebody else whose private space is smaller. It is always the association
of privacy with inequality that provokes resentment against the principle
of privacy, and the arguments against privacy are often similar to those against
inequality.
The argument for privacy is the counterargument to the Platonic argument for
the necessity of the equal bearing of adversity by all: the community has an interest
in ensuring that, in times of political error or aberration, not everybody should
be equally affected by adversity in the public sphere. The private sphere is a safeguard
against the totalism of wrongdoing perpetrated by politics. Naturally this also
implies that the good public sphere is prevented by the same mechanism from exerting
a good effect on the totality of the social world, because a private sphere can
then assert itself beyond the confines of the public sphere.
Banking secrecy in Switzerland undoubtedly made it possible to prevent the
Nazis from accessing Swiss bank accounts belonging to Jews. The Nazis’ attack on
private law in general, and the dereliction of any protection in private law for Jewish
citizens, made way for totalitarian ideology and practices to pervade all spheres of
German life during the Nazi period.
The protection of privacy is therefore akin to a technique for risk minimization,
to counter the total intrusion of the state, and thus to mitigate its political, legal and
cultural mistakes. Perhaps the right to privacy and the insistence on the distinction
between the private sphere and the public sphere mean that the optimal state is never
realized, because the citizens reserve the right to privacy, but at the same time, they
prevent the worst outcome, namely the insinuation of the bad public sphere into all
realms of society – totalism of the bad public sphere. The differentiation between
private and public is necessary because the risk of the worst is always to be avoided,
and because it is not always possible to realize the best. The imperative of halting
totalism in the political sphere follows from the principle of law and from the ethic
that we always have the duty to avoid wrongdoing but that we do not have the duty
to induce the optimal by coercive means.
The imperative of upholding the distinction between private and public is a kind
of negative utilitarianism. The prime concern is not to realize the monism and maximal
utility of the optimal public sphere, but to avoid the negative utility or harm
done by totalism of the bad public sphere. This imperative follows from the frailty
of human nature and the ever-present danger that this frailty will be potentiated and
totalistically propagated by collective political action.
Aristotle himself states the crucial objections to be raised against the nondifferentiation
of private and public in his criticism of Plato’s theory of communal
property without any distinction between private and public, oikos and polis: his
argument against Plato is that communal property is not really property, and that
individuals will no longer care for things if there is no distinction between the public
and the particular. He further criticizes that, by following Plato’s political philosophy,
the principle of the mixed constitution and of the separation of the power of
several constitutional principles, as well as the principle of distinguishing between
public and private, cannot be realized. In the state with communal property and