Individual Rights in Halakha
Based on a shiur by Harav Aharon Lichtenstein
We have gathered here to discuss the rights of the individual under Halakhic, American, and Israeli law. I have been asked to describe the Halakhic approach. I trust no one expects to hear a summary of the relevant halakhot, much less their comparison with American or Israeli counterparts. While I shall have occasion to allude to them, it is the perspective rather than the substance of Halakha which is my primary theme.
With reference to perspective, let me begin by noting that the very formulation of our topic is non-, perhaps even anti-Halakhic in character. One can devote a conference to the analysis of the Halakhic rights of the individual as one can dissect any legal minutiae. But to place them at the center of a Dialogue intended to deal with the legal aspects of the individual’s place in society – this is non-Halakhic. “Rights,” natural or other, are the current coin of Roman legists. They are the legacy of Locke and Montesquieu, of John Stuart Mill and Martin Luther King. They are not the lingua franca of the Torah or the Talmud, of Rabbi Akiva or the Rambam. The corresponding Hebrew term zekhut (or, in the plural, zekhuyot) appears in the Talmud; but in comparison with analogous concepts, it is clearly peripheral. The central Halakhic categories, in this area as elsewhere, are mitzvah and hiyuv – commandment and obligation, the individual’s duties rather than his prerogatives. Whether duties are defined as a function of rights or vice-versa – an important question in other respects is, for our purposes, immaterial. What is important is the fact, at the personal no less than at the collective level, the dominant note is normative rather than permissive.
To anyone familiar with Halakhic thought and Halakhic values, the point is self-evident. Nevertheless, two examples, both drawn from areas in which legal rights otherwise figure prominently, may help to sharpen it. The normative thrust of Halakha is reflected in its approach to reciprocal relationships in whose formulation mutual responsibilities loom large. Thus, the Rambam concludes Hilkhot Sekhirut (“the laws of hire”) with the following precept: “Just as the employer is enjoined from embezzling the poor laborer’s wages or detaining them, so is the poor laborer enjoined from cheating [on] the employer’s work and malingering a bit here and a bit there and spending the whole day disingenuously. Rather, he is obligated to be very strict with himself with respect to time and to work with all his might.”
The normative thrust of Halakhic law and ethics is not, of course accidental. It is rooted in a metaphysical and theological base. Halakha regards the individual – man in general but the Jew in particular – as God’s servant. The Torah is clear and emphatic on this point. “For unto Me the children of Israel are servants; they are My servants whom I brought forth out of the land of Egypt: I am the Lord your God” (Vayikra 25:55).
While Christian theology has often sought to oppose sonship to servitude, regarding the former dispensation as having superseded the latter, Judaism has always insisted upon a concurrent and dialectical approach. On Rosh Hashanah, the community of Israel presents itself before God, im k’vanim im ka’avadim – “be it as sons, be it as servants” – with no attempt whatsoever to blur or denigrate the latter. Halakha is a form of bondage. It is more than that; indeed, the Rabbis insisted it was also a form of freedom. But it is not less.
This bondage is grounded in two principles. It derives, in part, from the sheer metaphysical and existential chasm between man and God, from the fact that, given their respective natures, one ought to be servant and the other master. It derives, equally, not only from what God is but from what He does and/or has done, from His role as creator, sustainer and provider and from man’s corresponding position of dependence. “They are My servants whom I brought forth out of the land of Egypt.” Whatever the basis, however, the reality should be clear. Halakha speaks of human bondage.
All of this may sound Calvinistic, perhaps even Kafkaesque, but it is as thoroughly and as purely Jewish as any article of our faith. And it has, of course, practical implications. Conventional morality – articulated by Mill a century ago but by now the patrimony of school children – holds that anyone and everyone is entitled to do as he pleases provided that he steps on no one else’s toes; that as master of his self, he is free to mold his own destiny.
Halakha is radically opposed to this attitude. It holds that, even with respect to his own personality, man is more trustee than master, and that whoever violates its sanctity and dignity transgresses a divine commandment. Halakhically, the same laws which prohibit a person from maiming or cursing others, enjoin him from maiming or cursing himself.
The point of departure for a Halakhic discussion of the individual’s rights is thus fundamentally different from the secularist’s. Philosophically – the concrete anthropological and sociological aspects are another matter – secularism regards the individual as primordially and inherently invested with unlimited rights. It is only at a secondary plane that these are somewhat circumscribed in order, as in social contract theory, to assure a modus vivendi with others and thus guarantee the rights of each; or else, as in more organic theories, in order to promote the development and stability of a corporate entity whose enhancement constitutes a common interest.
Halakha, on the other hand, regards man as intrinsically limited – not only by his natural finitude (this is altogether too obvious) but by his metaphysical relationship to God. Broadly speaking, of course, this distinction is not confined to Halakha in particular but relates to the difference between religious and secular perspectives in general. Nevertheless, the point is significantly accentuated by the scope and detail of the Halakha’s demands.
The restrictive character of the Halakhic approach is sharply underlined by a seemingly contrasting fact. While Halakha rejects the concept of radical freedom as a metaphysical right, it places overriding emphasis upon it as a metaphysical fact. The whole of Halakha, its legislation as well as its penology, is grounded in profound faith in man’s capacity to choose freely and to chart his own course; and it is precisely this faith which makes the stress upon duty, the incessant call to respond to commands, possible. However, this faith also reinforces the sense of Halakhic restrictiveness. In effect, it tells the individual: “The world is all before you and the exercise of a wide range of options is well within your grasp. The Torah however, limits your choices; or, if you will, demands that you limit them.”
The contrast with much secular theory is again instructive. Many of those who argue for maximal if not absolute freedom as a natural and moral right concomitantly contend there is little if anything the individual can do with it as he is largely and perhaps wholly determined; and, following Beccaria, they tailor their penal theory accordingly. Halakha grants man less but believes in him more.
I have concentrated upon one cardinal point: the Halakhic perspective upon man as a being invested with rights and responsibilities. However, the position I have outlined allows for considerable latitude with respect to specific allocations of rights and duties; and it is to this question that I now turn. What personal rights and what degree of those rights relative to contemporary American and Israeli law does Halakha recognize? What are the implications of its metaphysical position with respect to the practical, and especially the sociopolitical, order?
In dealing with this question, we should distinguish between two kinds of rights: that which constitutes a person’s social and economic due as a condition of his existence and that which is his legal and moral privilege as a measure of self-determination; that which is provided by the welfare state and that which is recognized by the permissive society. The right to life is qualitatively different from the right to abort. The former can relate to man qua object; it can, indeed, apply to an animal as well. The latter can only refer to man as a moral agent. Liberty straddles both realms, being both a dimension of existence and a prerogative of action. There is a sense in which, to use the Grand Inquisitor’s terms, freedom is also bread. But it has different import in each.
With respect to the first kind of right, it can be fairly stated that the general Halakhic approach is quite liberal. On the one hand, Halakha places great stress upon the worth of the individual as “a world unto himself” (Mishna Sanhedrin 4:5), and a social world at that. On the other hand, it lays great store by caritas, both as an element in the molding of personal and communal character and as a mode of imitatio Dei. The conjunction of the humanistic and religious elements results in an overbearing emphasis upon chesed, as both policy and virtue. Its realization entails provision of a reasonable standard of living and not just bare necessities. It related to the quality of life no less than to its amenities and it requires empathetic sustenance as well as material support. The Halakhic approach is not purely egalitarian inasmuch as it does not begrudge the existence of an affluent class. But its insistence upon a “fair deal” has an egalitarian thrust and it reflects a concern for the individual’s rights in one sense.
Given our collective legal orientation, however, it is with rights in the second sense, as license rather than due, that we are primarily concerned; and, in turning to this, I should like to survey the individual’s rights vis-a-vis a) other individuals, b) the community as a whole, and, finally, c) the corpus of Halakha.
With respect to the first, we need to differentiate between the great mass of individuals to whom a person has no particular ties and those with whom one has a special social relationship. Concerning the former, the distribution of reciprocal rights and duties will tend to be uniform.
This is, however, more a question of equality than of liberty. If we turn to the broader area of general relationships, we are confronted by the problem of license proper. The central issue here is that of “rugged individualism” – the extent to which the individual is allowed free play in aggressively pursuing is own interests. On this issue, Halakha may be regarded as occupying a middle ground. It rejects the Christian call for turning the other cheek or giving away the last cloak. It holds that, given a reasonable parity of interests, “your life takes precedence over that of your fellow” (Bava Metzia 62a).
On the other hand, Halakha radically opposes the classical liberal position that the individual is endowed with the inalienable right to the most free-wheeling pursuit of his interests and that such a course ultimately redounds to the greater benefit of society as a whole. It is questionable whether such benefit indeed accrues; but it is reasonably certain that a Halakhic approach would regard the attendant moral corrosion as an excessive price. If the divorce of ethics from economics, at least at the legal plane, lies at the heart of laissez-faire theory, their integration is the cornerstone of the Halakha’s position. Prohibitions against profiteering, usury, or cornering essential markets illustrate the point; but the relevant halakhot extend well beyond statutes regarding just prices.
The Halakhic position is reflected in its treatment of one of the most fundamental rights: property. Halakha does not, of course, reject private property. On the contrary, the concept is very prominent, with reference to many areas of ritual, no less than socioeconomic, law. And yet, the Mishna states that adherence to the notion that “mine is mine and yours is yours” is “a trait of Sodom” (Mishna Avot 5:10); and many authorities hold that if a person owns a field or a house which is lying fallow, being neither used by him nor up for rent, someone else can compel the owner to let him use it free of charge. Moreover, a person’s control over his property is limited per se. He cannot, for instance, destroy it wantonly. He is, after all, God’s trustee-servant.
Turning to consideration of the rights of the individual vis-א-vis the community, we are confronted by two questions. We can treat the latter as either a social or a political entity. Regarded as a social unit, society at large can, for our purposes, simply be seen as a greater individual, with respect to whom much of what I set forth previously can apply. The Halakhic tendency is to circumscribe self-assertion when it can have a deleterious impact upon the public domain. The halakhot concerning “restriction of [potential] damages,” make it clear that confronted by the choice between environmental protection and industrial growth, Halakha is inclined – and with respect such an issue one cannot speak of much more than relative inclination – to opt for the former.
With respect to the individual’s rights vis-א-vis the community as polis, we are confronted by it not as the object of his actions but as their potential controller – and this brings us back to the Jew’s metaphysical servitude. Only here it cuts both ways. Commenting on the Torah’s phrase, “They are My servants,” the Rabbis added: “And not the servants of servants” (Kiddushin 22b). Depending on the extent to which, if at all, one identifies the state’s general will with the will of God, one’s commitment to it and his recognition of its right to help regulate his life will be either greater or lesser than the secularist’s.
In the absence of such identification – and various criteria may be used to judge it – the force and scope of Halakha will necessarily diminish the position of other sources of authority. Thus, many early authorities severely circumscribed the Talmudic formula, “the law of the government is law” (Gittin 10b and elsewhere), limiting it to areas directly affecting governmental interests. Others held local councils could only impose fines for the violation of ordinances which had been enacted with the violator’s consent. This view is indeed quite startling – so much so that some have questioned its authenticity – but the reservations it reflects are not atypical.
The situation is quite different when Halakhic institutions and/or values are involved; and this brings us to the heart of our problem: the individual’s rights vis-א-vis Halakha itself. This question, in turn, resolves itself into two: the right of rejection and the right of interpretation. With respect to the latter, we encounter a seemingly paradoxical situation. When one’s rejection of jurist authority is sharpest, his right to reject it is strongest. If a person regards a given decision as being totally in error – say, because the Sanhedrin has wholly ignored a salient text of lacks proper information – he is empowered and indeed obligated to act in accordance with his own convictions. If however, he challenges its members on a fine point of analysis or interpretation, he is bound to accept their view.
The distinction is not, in reality, paradoxical at all. In the first case, the conflict is over clear right and wrong and its context monistic; hence, the right to act in accordance with one’s own view. The right may be limited to personal behavior; i.e., it exists in God’s eyes and the court, from its perspective, can possibly be empowered to judge the person on the basis of its own position. But it exists. In the latter case, however, the issue is one of honest differences of opinion, with both sides agreeing that rational and fully informed scholars could conceivably arrive at either conclusion. In this pluralistic context, the question is not of error but of interpretation, and the Torah has designated one as definitive: “Thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left” (Devarim 17:11).
The right to renounce Halakha entirely, or even to reject its acknowledged dictates within a given area, is, of course, another matter. As a general principle, it does not exist. Halakha is, in this respect, unreservedly and unabashedly theocratic. It is rooted in the doctrine of avaday hem – “they are My servants.” It does not hold that the Creator has endowed the Jew with the inalienable right to countermand His orders. The capacity, yes; the right, no. At its inception, “the covenantal community” (to use a term favored by Rabbi Soloveitchik) came into being as the result of freely given commitment. Once created as an organic entity, however, its existence has decisive implications for its members. For the Jew who falls within its jurisdiction, the Halakhic regime becomes a challenging demand. Moreover, the blend of particularism and universalism which is so endemic to Judaism precludes emigration. “Whither shall I go from Thy spirit? If I ascend up into Heaven, Thou art there; if I make my bed in the netherworld, behold, Thou art there” (Tehillim 139:7-8).
This exposition may sound – and perhaps is – very severe; but I have consciously set forth the Halakhic position in all its rigor so that the problematic related to it may be perceived with utmost sharpness. For there is a problematic. At a primary metaphysical level, the Jew is a total servant. At a secondary level, however, he has been invested by God with a measure of freedom – his as a gift of grace rather than as inherent natural right, but his nonetheless. His task at a tertiary level, then, is kabalat ol malkhut shamayim – “acceptance of the yoke of the Kingdom of Heaven” – to subordinate his will to his Maker’s, as an expression of love and service. “God doth not need / Either man’s work or his own gifts; who best / Bear his mild yoke, they serve him best.” That service, as Milton would surely have agreed, is only meaningful, however, insofar as it is freely given. What He does need is the element of freedom in man’s commitment. And this is, surely, what man needs. His obedience is spiritually significant only as an expression of personality; and to that end, it must be grounded in personal freedom.
Coercive and enforceable restriction does pose a very serious and very disturbing problem, however. Essentially, it entails the clash of conflicting Jewish values. To the extent that coercion tends to dehumanize – it generally treats man as object rather than as subject – it erodes the sanctity of the personality. That sanctity is central to our tradition; and it assigns to the individual a value greater than any possible within a purely secular context. Moreover, coercion inhibits that measure of socially enriching diversity – admittedly limited by current Western standards – whose evident value is reflected in a Halakhic precept: “Whoever sees a populace says, ‘Blessed is the Sage of secrets,’ for their visages do not resemble one another nor do their intelligences (or, possibly, their views) resemble one another” (Berakhot 58a).
But there are countervailing claims as well. Judaism is profoundly committed to the ideal of a sacred community, organically and historically bound by common commitment to the God of Israel; and it aspires to the fulfillment of a metahistorical vision of human redemption and divine majesty. Their realization can be impeded, however, by an individual’s recalcitrance – not only because of his defection per se but by its impact upon others. Protection of the spiritual environment is thus a matter of prime concern. Opinions may vary as to the degree of centrality to be accorded the communal and metahistorical – I myself, as compared to, say, Rav Kook’s disciples, am inclined to assign it less importance. But it remains significant on all views.
It should be borne in mind, moreover, that within Jewry, religious deviation has different import from what it would have within a secular context. If a nation-state is defined by ethnic or geopolitical factors, the moral and religious status of its citizen may be a matter of concern, but it remains a detail within the framework without affecting its basis. Knesset Yisrael, however, was conceived and sustains itself as a spiritual community whose very peoplehood, even when given geopolitical dimensions, is defined by its commitment. Rejection of that commitment cuts at the very heart of both the nation’s substratum and a person’s relation to it.
The Halakhic basis for a measure of personal restriction rests upon individual interests as well. These relate, in part, to others. The maintenance of a healthy moral climate is as much a right, in the sense of a due, as unpolluted air. In part, however, they relate to the restricted individual himself. To see man as commanded is to see him as living under law and educable by it. From a Halakhic perspective, law is not merely an auxiliary tool for dealing with aberrations of homo sapiens or homo economicus. It is central to human existence, and, as such, it can help mold human personality.
Only here so much depends upon the individual in question. The net educational impact of moral or religious legislation upon a person may be either positive or negative, depending upon his basic stance. Within a context of fundamental recognition of a law and its matrix of authority, a law, despite its coercive aspects, may sharpen moral sensitivity and adherence to the law’s basic values.
The variable of prospective individual response is a very important factor in determining both the wisdom and the morality of laws aimed at the “enforcement of morals.” Pressure, legal or other, which simply elicits a negative response is not only unwise. It is morally and Halakhically dubious. Legislation in this sphere should be countenanced, under such circumstances, only when truly overriding public interests are at stake. In this respect, of course, the situation within a pluralistic and largely secular society is very different from that within a Halakhic community; and this point has certain practical implications. However, the principle of the use of law as an educational medium, under proper conditions, remains fundamental to Halakha.
The reconciliation of conflicting claims is not peculiar to the Halakhic approach to personal rights. It lies at the heart of any sensitive treatment of the issue. Bottom lines differ, however; and I think, in summary, that the Halakhic balance allows for less license that its American or Israeli counterparts. A number of reasons may be suggested, relating to different perspectives upon a) the community, b) the role of law, c) the status of the individual. Comparatively, Halakha has, first, a greater collective spiritual stake. It has both a sharper sense of its constituency’s organic unity and a more ambitious view of its ultimate spiritual destiny. Consciousness of these has been somewhat attenuated in the U.S.; and while it exists in segments of Israeli society in abundance, its focus is often more national than moral: hence, possibly, the greater limits upon personal rights in the name of security than in the name of morality.
Secondly, Halakha assigns a far more important role to law within the life of the individual and of society. The Jew’s existence is suffused with din. Some of what is subsumed under din is perhaps not law, actionable and enforceable, in the general sense of the term. The bulk of it does constitute, however, an intensive and comprehensive legal corpus which addresses the Jew in all walks of life. Halakha has, therefore, greater faith in the educational potential of law – a faith reinforced by a sense of the continuity of the secular and the sacred, the spiritual and the temporal.
Thirdly, Halakha rests, as we have seen, on a metaphysical view of man as charged rather than merely endowed; and this has implication both for its conception of him and for his own self-image. Halakha is thus sensitive to the value of spiritual freedom but less leery of impinging upon it within the spirit and context of “they are My servants.” Restrictions of a non-Halakhic character (in the broad sense of the term) it may very well oppose; v’lo avadim la’avadim, “and not the servants of servants.” The enhancement of man’s role as God’s servant is regards as positive, however. The right of privacy has an important place in Halakha, but as a due, within the framework of social relations. The notion that no law can relate to the more private aspects of personal existence is wholly foreign to it. The contention that a woman should have the right to abort a fetus simply because it is gestating within her body is thoroughly anti-Halakhic.
In the final analysis however, the Halakha’s rejection of moral laissez faire rests, in large measure, upon the certitude of its own truth. It speaks and legislates within a fundamental context of moral and religious absolutes. To the outsider, of course, this is precisely the stumbling block. Nurtured upon relativism and bereft of faith in revelation, he often finds it difficult to comprehend the spirit and substance of the Halakhic position. This is thoroughly understandable; and yet surely the skeptic cannot expect his own doubts to constitute part of the Halakhic corpus proper. If one wishes to understand Halakha, the least he or she can do is to perceive it in its own terms.
(This lecture was presented at the Thirteenth Annual American-Israeli Dialogue in July 1977, which was devoted to “The Rights of the Individual under Halakhic, American and Israeli Law.” It was published in Congress Monthly 45:4-8, 13, March/April 1978.)
It has been translated into hebrew by Aviad Hacohen.