Capítulo I: Génesis del Derecho a la Protección de Datos Personales
1.1. Referente Histórico del “Derecho a la Privacidad y la Protección de Datos Personales”
1.1.1. La privacidad como derecho individual, humano, global y tecnológico
The formal apparatus presented in Kaplan (1989a) is insufficient to vindicate the determination principle without further development. In Kaplan’s original formulation, the formal context was restricted to the “proper” parameters of agent, time, location
and possible world such that the agent is located at the location at the time in the
possible world (p. 509; pp. 543-544). This allowed for the assignment of referents to
12 In the process of arguing against a close variant of DP, Recanati (forthcoming) downplays the
distinction between metaphysical and epistemic determination in a way that suggests he might defend such a claim. See also Gauker (2008), Stokke (2010) and King (2014).
certain context-sensitive, or indexical, expressions that Kaplan called pure indexicals.
Here’s what Kaplan says about these expressions:
Among the pure indexicals are ‘I’, ‘now’, ‘here’ (in one sense), ‘tomorrow’, and others. The linguistic rules which govern their use fully determine the
referent for each context. [footnote omitted] No supplementary actions or intentions are needed. The speaker refers to himself when he uses ‘I’, and no pointing to another or believing that he is another or intending to refer to another can defeat this reference [footnote omitted] (p. 491; original emphasis).14
Pure indexicals are assigned characters that are modeled as “functions from possible contexts to contents” (p. 505). For example, whereas the character of each expression is a rule defined in terms of the appropriate parameter of the context, e.g., ‘I’ picks out the value of the agent parameter, the content of ‘I’ at a given context is simply the agent of that context, likewise for, ‘here’, ‘now’ and ‘actually’ (p. 546).15
Kaplan calls the other kind of indexicals true demonstratives, and claims these
expressions
require, in order to determine their referents, an associated demonstration: typically, though not invariably, a (visual) presentation of a local object discriminated by a pointing [. . . ]
A demonstrative without an associated demonstration is incomplete. The linguistic rules which govern the use of the true demonstratives ‘that’, ‘he’, etc., are not sufficient to determine their referent in all contexts of use. Something else—an associated demonstration—must be provided (p. 490). An expression like ‘there’, for example, can potentially pick out any location (except the location of the context of use), but which particular location is not fixed by any of the features represented in the formal context. Hence, “something else” is required to determine the content.
14 In the first of the suppressed footnotes, Kaplan notes certain uses, e.g., in recorded messages and
written notes, “which exhibit a special uncertainty as to the referent of ‘here’ and ‘now’,” and also observes that such expressions “suffer from vagueness regarding the size of spatial and temporal neighborhoods to which they refer.” However, “[t]hese facts don’t seem to me to slur the difference between demonstratives and pure indexicals.” (n. 12). Subsequent theorists have disagreed. See, e.g., Perry (2001), Recanati (2004), Predelli (2005), and Stokke (2010).
15 In fact, Kaplan analyzes ‘now’, ‘actually’ and ‘yesterday’ as one-place sentential operators (p. 542),
but these too are defined in terms of the relevant parameters of the formal context (i.e.,time,world, andtime-1, respectively). The operator analysis is irrelevant for our purposes.
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Different theorists have different accounts of what the “something else” amounts to in the case of true demonstratives.16 For the sake of argument, let’s assume a simple treatment according to which the formal context is expanded to include an additional
demonstrated object parameter. On this treatment, the content of ‘he’ in (7) in a given
context is the demonstrated object in that context.17 (7) He is the smartest person in the room
For the moment, we can assume a similar treatment for other true demonstratives like ‘you’, ‘that’, ‘then’, etc. The general strategy on this approach is to expand the formal context to include additional parameters in terms of which the contents of the true demonstratives can be functionally derived in the manner of the pure indexicals.18
This strategy maintains Kaplan’s directly referential analysis according to which the content of indexicals, and that which they contribute to the larger expressions in which they occur, is always the particular object determined by the context of use, rather than the descriptive rules that constitute their characters. Nunberg (1993), however, offers plenty of examples of attributive uses of such expressions wherein the speaker is not referring to any particular individual, but rather a property holding of an individual. For example, a speaker might comment on the new Argentinian Pope by uttering (8), thereby saying something about the leader of the Roman Catholic Church, as opposed to the particular individual bearing the title circa the utterance.
(8) He’s usually Italian
Bezuidenhout (1997) offers further examples of the distinction between referential and attributive uses of indexicals, including the first person pronouns ‘me’ and ‘we’ and the second person singular pronoun ‘you’, observing that, “attributive uses of indexicals require us to entertain the possibility that the character of an indexical sometimes determines an [object-independent] proposition” (p. 393).19 It’s not immediately obvious, given an expression like (8), which feature of a context of use would determine
16 I discuss these different treatments in detail in chapter 3.
17 More generally, the formal context will need to include indefinitely many demonstrated object
parameters to treat expressions that contain multiple true demonstratives. The content of the
nth demonstrative in the construction would then be a function of thenth demonstrated object
parameter.
18 Kaplan (1989a) calls this theIndexical Theory of Demonstratives. See Braun (1996) for a develop-
ment of the view; Salmon (2002) and Caplan (2003) for discussion.
19 Nunberg and Bezuidenhout’s examples decisively refute Kaplan’s claim that “In meaningful
discourse, a pronoun not used anaphorically is used demonstratively” (1989b, p. 572). See (22) below.
whether an object-dependent or object-independent proposition is to be assigned, and in the latter case which particular propositional content is to be assigned.20
A Kaplanian-minded theorist might posit ambiguity here, distinguishing between bona fide referential indexicals and homophonic non-referential expressions, but such a move is ad hoc and undercut by a unified account of the expressions in question that
captures both kinds of uses. Bezuidenhout in fact offers a unified semantic account of both indexicals and definite descriptions, and in each described case provides a detailed pragmatic account of how distinct propositions are derived. Her approach makes clear that, simply having identified a distinction between referential and attributive uses
of certain expressions, it does not follow that the distinction must be semantically encoded in the expression per se.21 According to her, “the best way to account for the referential/attributive distinction is to treat it as semantically underdetermined which sort of proposition is expressed in a context” (p. 405).22 I return to this suggestion in section 2.6.
20 In fact, Kaplan himself notes, but does not discuss, the fact that “some indexicals have both a pure and demonstrative use” citing an example (attributed to Michael Bennett) of a demonstrative use of ‘here’ to pick out a location on a map (1989a, p. 491). As such, though Kaplan didn’t acknowledge
it, the issue affects the whole class of inexicals, bothpure indexicals andtrue demonstratives.
21 A related point is made with respect to definite descriptions in Kripke (1979) in light of the distinct
referential and attributive uses of such expressions identified by Donnellan (1966).
22 Bach (2001) makes a similar point in the case of complex demonstratives, observing that (v) can
be used either referentially or attributively. (See also the so-calledno demonstration no speaker reference(NDNS) examples of complex demonstratives in chapter 1 of King (2001).)
(v) That tree is deciduous
For example, (v) could be used referentially by a speaker to predicate a property (being deciduous) of a particular demonstrated object that is a tree. But a referential use is not required inasmuch as “‘that’ can be used nondemonstratively to make descriptive rather than objectual reference [. . . ] say to whichever tree dropped leaves on one’s windshield” (p. 33). To capture both uses simultaneously, Bach suggests we could analyze (v) as an “open proposition” that “does not specify the proposition that results from determining the identity of the tree” (p. 33). On Bach’s preferred account, “which tree this is is determined by [the speaker’s] referential intention” (p. 33). More generally, he motivates construing (complex) demonstratives in terms of constraints on use, writing,
the constraint on ‘she’ is that it be used to refer to some female, and the constraint on ‘that tree’ is that it be used to refer to some tree. The referent is “contextually determined”, i.e., determined in context (not by context) by the speaker’s referential intention (p. 32).
This distinction between content being determined in context verses by context will figure in the alternative account I sketch in section 2.6.
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