Human Dignity and Freedom
HUMAN DIGNITY AND FREEDOM
These are fundamental values in the world of Judaism and, today in the Jewish State. In 1992, "Basic Law: Human Dignity and Freedom" was enacted, to anchor rights derived from these values. Section 1 of the Basic Law determines that: "Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel." Section 1a of the Law states that: "The purpose of this Basic Law is to protect human dignity and freedom, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state."
The Law proceeds to describe these fundamental rights. Sections 2 and 4 of this law stipulate that: "There shall be no violation of the life, body or dignity of any person as such" and that "All persons are entitled to protection of their life, body and dignity." According to section 3 of the law, "There shall be no violation of the property of a person"; section 5 states that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or by any other manner"; while section 6 clarifies that "All persons are free to leave Israel" and that "Every Israeli national has the right of entry into Israel from abroad."
Section 7 of the Basic Law stipulates that: "All persons have the right to privacy and intimacy"; "There shall be no entry into the private premises of a person who has not consented thereto"; "No search shall be conducted on the private premises or body of a person, nor in the body or belongings of a person"; and "There shall be no violation of the secrecy of the spoken utterances, writings or records of a person." In 1992, shortly after the enactment of the "Basic Law: Human Dignity and Freedom," the Knesset enacted the "Basic Law: Freedom of Occupation," which enshrines the basic right of every Israel national or resident "to engage in any occupation, profession or trade" (Section 3). For a detailed discussion of the rights enumerated in the Basic Laws, see *Rights, Human.
These principles existed in the legal system of the State of Israel even before the enactment of the aforesaid Basic Laws, most of them pursuant to case law of the Supreme Court from the time of the State's establishment. The fundamental change that occurred with the enactment of the Basic Laws was to attribute constitutional status to the basic principles contained in these Laws, as opposed to their being based on ordinary legislation or judicial precedent alone.
The practical significance of anchoring the aforesaid fundamental rights in a Basic Law appears in section 8 of the Basic Law: Human Dignity and Freedom, the so-called "limitation clause." This states that: "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law" (cf. section 4 of the Basic Law: Freedom of Occupation). The Supreme Court ruled that by virtue of this section, a court is entitled to strike down any law that does not comply with the terms of these sections (See hc 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, pd 49 (4) 221; hc 1715/97 Office of Investment Managers in Israel v. The Minister of Finance, pd 51 (4) 367).
It should be noted that there are significant differences between the two aforesaid Basic Laws. Section 10 of the Basic Law: Human Dignity and Freedom states that: "This Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law." By contrast, the Basic Law: Freedom of Occupation does not include any such provision and applies even to laws enacted prior to the Basic Law's coming into force, with certain exceptions set out in sections 8 and 10 of this Law. A further significant difference exists in relation to the entrenchment of the two laws. According to section 7 of Basic Law: Freedom of Occupation, the latter may only be changed by a Basic Law passed by a majority of the members of the Knesset. By contrast, Basic Law: Human Dignity and Freedom contains no such entrenchment provision.
Human Dignity and Freedom in Jewish Tradition
Human dignity and freedom are fundamental values of the Torah and the rabbinic literature. The Torah states that man was created "in the image of God": "And God created man in his image; in the image of God He created him" (Gen. 1:27). Respect for the Divine image in man serves as an important source in the Torah for the preservation of human dignity. The Torah states the following concerning a person who has sinned and is liable to the death penalty: "If a man is guilty of a capital offense and is put to death, and you hang him on a tree, you must not let his corpse remain on the stake overnight, but must bury him the same day. For an impaled body is an affront to God and you shall not defile the land which the Lord your God is giving you to possess" (Deut. 21:22–23). The Sages expound these verses: R. Meir asks – what is the meaning of the words "an impaled body is an affront to God"? This can be likened to two identical twin brothers, one of whom became king over the entire world while the other went out to pursue highway robbery. After a while, the latter was caught and crucified, and passersby seeing the body said "the king himself has been crucified!" This is the meaning of the words: "for an impaled body is an affront to God."
The principle of human dignity even requires respecting the dignity of criminal offenders. The Torah imposes a penalty on a person who steals an ox and later slaughters or sells it, in the amount of five times the value of the ox, while for stealing a sheep under similar circumstances, one is required to pay only four times its value (Ex. 21:37). The difference between the fine imposed for stealing an ox and that for stealing a sheep is explained by the Sages as follows: "R. Johanan b. Zakkai states: The Holy One blessed be He is mindful of the dignity of mankind. For [stealing] an ox, which walks on its [own] feet, the payment is fivefold; for [stealing] a sheep, which has to be carried on one's shoulders, the payment is fourfold" (Mekhilta de-R. Yishmael, Mishpatim 13). The difference between the fines stems from the sense of shame suffered by the thief in the case of the stolen sheep, which is usually carried away on his shoulders. Hence, the Torah was more lenient in the case of stealing a sheep than with stealing an ox, in which case the thief can simply lead the ox to his home and need not demean himself by carrying it on his shoulders.
The origin of human rights in Judaism lies in the fundamental notion of man's creation in the image of God. This basic axiom is the origin, not only of a person's right to dignity and freedom, but also of man's duty to protect his own dignity and freedom. This principle is given clear expression in a fundamental rule stated by the amora Rav: "A worker can withdraw from service even in the middle of the working day… for it is written (Lev. 25:55): 'for the children of Israel are My slaves [i.e., whom I took out of the land of Egypt'] – and not slaves to other slaves" (bk 116b; bm 10a). According to this law, an employee who hired himself out for an entire working day may withdraw his agreement in the middle of the day (and in such case only receives payment for the time he worked – see *Labor Law), by virtue of the principle that a person's obligation to work for another person, even if he agreed to do so out of his own volition, constitutes a violation of that person's freedom, and a type of slavery. The principle that a person's subservience to God requires that he not be subservient to another human being receives expression in the principle of the Hebrew slave.
According to the Torah, a person may be compelled to work for another individual if he is convicted of theft and is unable to pay his fine, or if he is in a state of absolute poverty and sells himself to another person. In both these cases, his term of service is limited to a maximum of six years, and the goal of this period, during which the slave's employer owes numerous duties towards his slave, is to facilitate the rehabilitation of the offender, who would otherwise remain homeless, as an alternative to imprisonment or remaining on the streets without a roof over his head. According to the Torah, a slave who refused to go free at the end of his term would have his ear pierced by his master using an awl, and would thereafter remain a perpetual slave to his master (Ex. 21:6). The Sages questioned the underlying principle behind this commandment of piercing the slave's ear: "R. Johanan b. Zakkai was asked by his disciples: Why, of all limbs, was the ear [of the slave who refused to go free] chosen to be pierced? He replied: 'The ear that heard at Mount Sinai: "You shall have no other gods but for Me" (Ex. 20:2), and rejected the yoke of the kingdom of Heaven, and in its stead accepted the yoke of a human being; the ear that heard at Mount Sinai (Lev. ad. loc.) "for unto Me the children of Israel are servants" and yet this person went and acquired for himself another master; therefore, let his ear come and be pierced because he disregarded that which his ear heard'" (tj Kid. 1.2).
The slave is punished for having waived his right to freedom. Perpetual enslavement to another person involves a kind of idolatry. As explained by the aforesaid words of the Sages, the first commandment states: "I am the Lord your God who brought you out of the land of Egypt out of the house of slavery. You shall have no other gods but Me" (Ex. ad loc.). This commandment exhorts a person to be free, and he cannot release himself from this obligation, neither in favor of an idol, nor in favor of another human being. The slave, the worker and the master, are all servants of God, before whom all creatures are equal. Therefore no person is entitled to be the slave of another person, when the latter himself is merely a servant of God. Even this institution of a Hebrew slave, which is in essence an act of hire for a limited period for the purposes of rehabilitation, has not been practiced, according to all opinions, for close to two thousand years, and this too is compatible with the unbending commitment of Jewish Law to human dignity.
The principles of human dignity and freedom according to Jewish Law were developed and continued to constitute a central plank of Jewish law throughout the ages, culminating in the modern State of Israel. We will consider some of these developments in the context of judicial rulings made by the Israeli Supreme Court.
A Jewish and Democratic State
Section 1a of Basic Law: Human Dignity and Freedom, and similarly section 2 of Basic Law: Freedom of Occupation, states: "The purpose of this Basic Law is to protect human dignity and freedom, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state." This section underlies the constructive principles of the two aforesaid Basic Laws, in whose light the courts must construe the values anchored in the Basic Laws. Many judges and scholars have disputed the construction of the key phrase in this section – a "Jewish and democratic state" (see entry *Values of a Jewish and Democratic State).
Human Dignity and Freedom in Jewish Law, Through Rulings of the Supreme Court
The fundamental principles of human dignity and freedom existed and were developed even before the enactment of Basic Law: Human Dignity and Freedom, and the Supreme Court had recourse to the principles of Jewish Law when considering human dignity and freedom-related issues. One example of this was the Katlan case (hc 355/79 Katlan v. The Prison Service et al., pd 34 (3) 294), which discussed the question of whether the prison authorities were entitled to order the administration of an enema without the consent of the prisoners concerned, in order to discover drugs those prisoners had allegedly swallowed. The Court ruled that every person, including a prisoner, has a basic right to bodily integrity and the preservation of his dignity, and if the legislator wished to change this it needed to pass new and explicit legislation to do so. The judges hearing the case disputed the question of what would constitute the best law in this regard and the reasons for their recommendation.
Justice Aharon Barak reasoned that the legislator had to conduct a comprehensive examination of the various aspects of this issue, and that only after such an examination could the legislator decide that the legal status quo established as a result of the Court's ruling was not satisfactory, and could then change it via primary legislation, which might give rise in certain cases to secondary legislation. Justice Haim Cohn relied on Jewish legal sources: "Great is the principle of human dignity, as it overrides a negative commandment of the Torah," which the Babylonian Talmud interprets as referring to all rabbinical prescripts and interdicts which defer to human dignity, the rationale being that the Rabbis who imposed the prohibition may remove it later for the sake of human dignity. This principle, according to Justice Cohn, would suggest to the legislature that the administration of an enema into a person's body without his consent should not be permitted: "In this sense, the Oral Law of the rabbis is similar to the primary legislation of our own times. That may also suggest to the primary legislature that, just as the Rabbis were bold in waiving all prohibitions instituted by them where necessary to preserve human dignity, it too should be cautious in sacrificing human dignity on the altar of any other requirement whatsoever" (p. 306 of the judgment).
Justice Landau agreed with Justice Cohn's approach. However, he held that, according to Jewish Law, legislation should not necessarily be prohibited, in certain circumstances, which would permit the administration of an enema into a prisoner's body without his consent, because it may be that "we are faced with essential interests which exceed in importance even the need to preserve a person's right to bodily privacy, and even the Rabbis… never closed their ears to necessary evils and always found the way to enact regulations as emergency measures to 'fence in things' when they saw that the times required such measures in order to avoid worse evils to the public" (p. 308 of the judgment). At the same time, Justice Landau stopped short of making any specific recommendation as to the appropriate arrangement. The Katlan case is an interesting example of the fact that reliance on Jewish Law does not necessarily bring about a uniform outcome, and that disputes are possible within this framework regarding both the construction of its principles and the weight given to them.
In the Supreme Court, even before the enactment of Basic Law: Human Dignity and Freedom, the issue was disputed as to whether, according to the law in force at the time, the gravity of an offense per se is sufficient to constitute grounds for detention until the termination of legal proceedings. According to one opinion, a person could be detained until the end of proceedings solely on the basis of the gravity of an offense, thereby assuring public confidence in the effectiveness of the criminal legal mechanism. An additional factor relevant to this perspective was the need to prevent the feeling among offenders that much time would pass between the date of committing the offense and the time for proving their guilt by the prosecution, during which they would be at liberty to continue their activities. Justice Menachem Elon (mcm 2169/92 Suissa v. The State of Israel, pd 46 (3) 338), held that, even before the enactment of the above-mentioned Basic Law, a person should not be detained until the end of proceedings solely on the basis of the gravity of the offense, because this would befit neither the values of a freedom-loving state nor the values of Israel's Jewish heritage, which emphasizes the value of human freedom in light of the principle that: "Beloved is man who was created in the Divine image" (see mcmSuissa, ad loc. and the entry on *Detention). Following its passage, this approach is necessitated thereunder: "Upon the passage of the Basic Law: Human Dignity and Freedom, which includes mention of… detention as a violation of personal liberty, and which must be construed according to the express purpose… [of] anchoring the values of the State as a Jewish and democratic state. These interwoven supra legal values – Judaism and democracy – militate against the possibility of a person's arrest before trial on the grounds of 'guaranteeing the public confidence in the effectiveness of the criminal legal mechanism'… This reason cannot negate the most basic right that a person has as such, viz. his personal liberty" (p. 347 of the judgment). Today, following the enactment of the Criminal Law (Enforcement – Arrest Powers), 5756 – 1996, a person may not be imprisoned solely on the basis of the gravity of his offense.
In the case of Perah (hc 5304/92 Perah v. The Minister of Justice, pd 47 (4) 715), Justice Elon determined that a person may be imprisoned for a debt he owes only when it becomes apparent that the debtor is a person of means who is concealing his assets, and the imprisonment becomes the means to force him to disclose his assets and to restore the debt (see entry: *Imprisonment for Debt). The Supreme Court relied on the position of Jewish Law on this issue and on the legal status quo prevalent in other democratic systems, and ruled on this basis that the legal status quo that existed at that time, under which a debtor could be imprisoned for his debt without clarifying that he is debtor of means who refuses to pay his debt, was contrary to the provisions of the Basic Law: Human Dignity and Freedom, negating as it did the values of the State of Israel as a Jewish and democratic state.
In the Kastenbaum case (ca 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kastenbaum, 46 (2) pd p.464) the Supreme Court ruled, on the basis of Jewish Law, that human dignity applies not only during a person's life, but also after his death, and that this fundamental dignity includes the dignity of the deceased, the dignity of his family, and even the dignity of the public.
In establishing the essence and the scope of human dignity within the meaning of the Basic Law, the Supreme Court also referred to the limits of the concept, and in another case wrote the following:
Human dignity means not to disgrace or embarrass the divine image in man. Consider the matter well. Not every infringement of honor is included in the Basic Law: Human Dignity and Freedom. For example, insulting a respected person, who by dint of his stature ought to be seated with others of the same rank rather than among the ordinary people, might be regarded as a social insult (if it indeed is!), but is insufficient to cause a disgrace or embarrassment of his divine image, and such "offense" is in no way included within the framework of Basic Law: Human Dignity and Freedom. (hc 5688/92 Vicsilebaum v. Minister of Security, 47 (2) pd 812. 817
In discussing the essence of human dignity, its constituent values, and their implementation, the Supreme Court also addressed the problem of cases in which these values were in competition. This was the background of the Yael Shefer case (ca 506/88, Yael Shefer v. State of Israel, 48 (1) pd 87), in which the Court was required to rule on a mother's request to disconnect life support systems from her terminally ill daughter. The Court (per Justice Menachem Elon) wrote the following:
As a rule, the basic rights… complement one another. The protection of a person's life and body, dignity and privacy, and his personal liberty and intimacy do not contradict each other, but are complementary. This is not so in our case. A fundamental problem that arises is that the protection of this individual's life seemingly does not go hand in hand with the protection of her human dignity, personal liberty, privacy and intimacy. In our case, the obligation to protect the life of the patient is opposed – such is the argument presented to us – to protecting the dignity of the patient, who wishes to die and who refuses to accept the medical treatment whose purpose is to preserve her life. Hence, it is in opposition to the personal liberty of the patient and her personal autonomy. With this, we reach the heart of the matter before us: Is there really a contradiction between a person's fundamental right to life and its companion, human dignity? And if there is, indeed, a contradiction between certain basic rights and others, which among the rights is to be preferred over the other, and which one must we protect and preserve [?]" (For a detailed discussion of this case see *Law and Medicine; *Parents and Children.)
M. Elon, Ha-Mishpat Ha-Ivri (1988), 1:113, 252ff., 264ff., 287ff., 424ff., 535ff., 575ff., 606, 614ff., 795; 3:1391, 1392, 1431, 1464ff., 1491ff., 1496, 1499, 1542ff., 1552ff., 1555ff.; idem, Jewish Law (1994), 1:127, 295ff., 310ff., 340ff.; 2:518ff., 651ff., 708ff., 750, 760ff., 975; 4:1659, 1660, 1705, 1739ff., 1779, 1784, 1833ff., 1843ff., 1847ff.; idem, Jewish Law (Cases and Materials) (1999), 389ff., 441ff.; idem., "Derekh Ḥok be-Ḥukkah: Arakheha shel Medinah Yehudit ve-Demokratit le-Or Ḥok Yesod: Kevod Adam ve-Ḥeruto," in: Iyyunei Mishpat, 17 (1992), 659; idem, "Kevod Adam ve-Ḥeruto: Madei ha-Yahadut ve-Arakheha shel Medinah Yehudit ve-Demokratit," in: Madei ha-Yahadut, 34 (5754), 9; idem, "Kevod Adam ve-Ḥeruto be-Moreshet Yisrael," in Kevod Adam ve-Ḥeruto be-Moreshet Yisrael (5755), 15; idem, "Hukkei Yesod: Darkhei Hakikatam u-Parshanutam – me-Ayin u-Le'an," in: Mehkerei Mishpat, 12 (1995), 253; idem, "Ḥukkei ha-Yesod: Iggun Arakheha shel Medinat Yehudit ve-Demokratit: Sugyot be-Mishpat ha-Pelili," in: Meḥkerei Mishpat, 13 (1996), 27; idem, "Ha-Aḥer be-Mishpat ha-Ivri u-vi-Pesikat Bet ha-Mishpat ha-Elyon," in: Madei ha-Yahadut, 42 (5754), 31; idem, "Medicine, Halakhah, and Law: The Values of a Jewish and Democratic State," in: Jewish Medical Ethics, vol. 1 (2004), v–xxxvii; H. Cohn, Zekhuyot ha-Adam ba-Mikra u-ve-Talmud (1988); S. Ishon, "Kevod Adam ve-Ḥeruto, le-Or ha-Halakhah," in: Tehumin, 16 (5756), 313; I. Knohl, "Ḥerut ha-Adam ba-Mikra," in: Kevod Adam ve-Ḥeruto be-Moreshet Yisrael (5755), 60; N. Rakover, Gadol Kevod ha-Beriyyot: Kevod ha-Adam ke-Erekh-Al (1998).
[Menachem Elon (2nd ed.)]