The following article deals with the subject of human rights, their essence and the contents of various fundamental rights as reflected in the sources of Jewish Law. The interpretation of Israel's Basic Laws concerning human rights in accordance with the principles of a Jewish and democratic state, and the principles of the Israeli Declaration of Independence, and the disputes over the method of finding a synthesis between these values are discussed at length in the entries: *Values of a Jewish a Democratic State; *Law and Morality; *Human Dignity and Freedom.
Rights and Obligations
Rights play a central role in contemporary legal systems in general, and in the field of public law in particular. A substantial part of constitutional law deals with various human rights, such as the right to equality, the right to freedom of expression, freedom of occupation, freedom of movement and so forth. This approach is anchored in various philosophical, humanist and liberal theories, such as those of J.S. Mill, Locke, Hobbes and others, which emphasize the central place of man and his right to freedom. The existence of and respect for human rights are also a fundamental principle of democracy, and therefore any discussion of the combination of Judaism and democracy or of the "Jewish and democratic state" (see *Values of a Jewish and Democratic State, and M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkei ha-Hoẓa'ah le-Po'al – Arakheha shel Medinah Yehudit ve-Democratit (Jerusalem 2000); M. Elon, Ma'amad ha-Ishah – Mishpat ve-Shipput, Masoret u-Temurah, Arakheha shel Medinah Yehudit ve-Democratit (Tel Aviv 2005); idem, Ha-Mishpat ha-Ivri (1988); idem, Jewish Law (1994)) must also take into consideration the place of human rights in Jewish law, their origin, their scope and the principles that accompany them.
The basic approach taken by religious legal systems, and in particular of Jewish law to the issues dealt with in the realm of human rights place God, rather than man, at the center. As a result, man is perceived first and foremost as having obligations and not rights. It is true that in contemporary legal theory, obligations are accompanied by parallel rights (thus, for example, the prohibition "you shall not kill" as applying to one individual consequently results in the right of another individual to life; the obligation "you shall not steal" implies the right of the other to property; the obligation to return what has been lost [see *Lost Property] implies the property rights of the one who has sustained a loss; and so forth). Nevertheless, the point of departure being from obligations rather than from rights creates a completely different legal system than that existing in modern constitutional law, and the point of balance between rights and obligations changes accordingly (M. Elon, ibid.; Rabbi Yitzhak Breuer, Ẓiyyunei Derekh (Jerusalem 1982), 57–86; M. Silberg, Kakh Darko shel Talmud (Jerusalem 1982), 66; R.M. Cover, "A Jewish Jurisprudence," in: Journal of Law and Religion, 5 (1987) 65; H.H. Cohn, Zekhuyot ha-Adam ba-Mikra u-va-Talmud (Tel Aviv, 1988); idem, Ha-Mishpat (Jerusalem 1992), 512–13; M. Vigoda, "Bein Zekhuyot Ḥevratiyyot le-Ḥovot Ḥevratiyyot ba-Mishpat ha-Ivri," in: Zekhuyot Kalkaliot ve-Tarbutiyyot be-Yisrael (2005), 233–96).
An expression of Jewish law's basic approach to man's obligations can already be found in the first book of the Bible, in which Adam is placed in the Garden of Eden and commanded "to tend it and to keep it." Man is first and foremost "commanded," obligated, given duties rather than rights. Under this basic approach of Jewish law, as noted earlier, human rights are often formulated by way of negation, that is, by proscribing infringement of the various rights. Thus, for example, the Torah says "you shall not go around as a talebearer among your people" (Lev. 19:17) as an expression of the right to a good name; "you shall not rule over him with rigor" (Lev. 25:43) as an expression of man's dignity; "you shall not go into his house to fetch his pledge" (Deut. 24:10) as an expression of his liberty and right to privacy (see *Imprisonment for Debt), and so on, with "you shall" implicit in "you shall not."
Together with this, there are cases in which man is required, as a positive commandment, to respect various rights. Thus, regarding the obligation to maintain human dignity and physical integrity: "therefore take good heed unto yourselves" (lit., "your souls," interpreted as "your lives"; Deut 4:15) and, regarding freedom of movement: "proclaim liberty throughout the land unto all the inhabitants thereof" (see below).
Man's right to "self-fulfillment," or self-realization so extolled in the Western, humanist and liberal culture of our times as a central foundation of various rights, is by no means self-evident from the standpoint of Jewish law, because this conception places man in the center, whereas the Jewish religion, like other religions, places God at the center (A. Lichtenstein, "'Im ke-Vanim, im ka-Avadim' – Zekhuyot ha-Perat le-Or ha-Halahhah," in: Alon Shevut Bogrim, 12 (1997), 103–110; idem, "'Aseh Reẓono, Batel Reẓonkha' – Hirhurim al ha-Mifgash bein Halakhah u-Moderniyyut," in: Alon Shevut Bogrim, 13 (1999), 125–33; and see the ruling of Justice Y. Englard, hc 2458/01 New Family v. The Committee for Approving Agreements to Carry Fetuses, 57 (1) pd 419).
This basic distinction between "human rights" and "human obligations" is not merely a semantic difference, but also carries moral significance and consequences with regard to the desired balance between conflicting values. Whereas contemporary constitutional law speaks of the realization of interests, Jewish law stresses human responsibility. Thus, while contemporary theories emphasize man's "self-fulfillment," in Jewish law, notwithstanding that this value exists to a certain degree (see comments below on "Freedom of Expression and Creation"), the focus is on man's obligations and responsibilities towards others.
Another substantive difference between the approach of Jewish law and the basic premises of modern law, relates to the essential nature of human rights and their practical implications. In contemporary legal systems, the various rights afforded to human beings are of significance mainly in relation to other people. The modern theory of human rights holds that society (whether the state or individuals in society) must allow individuals to realize their right to freedom of expression, freedom of occupation and movement, and so forth. The rights are "theirs" – although they are, of course, entitled to waive them. This is not the attitude of Jewish law, where the emphasis is on man's obligations. According to this approach, in many cases people are not allowed to waive their rights, which are in fact obligations. Thus, they may not waive the "right to life" and commit suicide (see *Suicide), nor waive their "human dignity" and remove their clothes in public, even if no one else sees them.
This approach was uniquely expressed in a ruling of the Israel Supreme Court concerning a person who wished to waive his right to dignity and insisted that a police officer carry out a search of his person in the streets of the town. Justice Elon, on the basis of Jewish law, denied the request, stating that the preservation of "human dignity," which results from man being created in God's image, is not only a right but also an obligation imposed on human beings; hence, one is not entitled to waive it (see at length under *Human Dignity and Freedom, Cr. App. 2145/92 State of Israel v. Guetta, 46 (5) pd 704).
Terminology: "Right," "Liberty," "Freedom"
Like many other legal terms – such as *ḥazakah (possession, ownership, acquiring or proving, presumption); *kinyan (legal rights, act of acquisition); ones (Elon, Ha-Mishpat ha-Ivri, 71–72; Jewish Law (1994), 79) – the various terms used in the theory of human rights in Jewish law also have multiple meanings. Thus, for example, the term zekhut as used in Jewish law carries various different meanings depending on the context. At times it is used in the sense of a "right," as in modern legal terminology (thus, for example, M. Ketubbot 4:4: "The father has a right to receive his daughter's betrothal [money]"; Yad, Sekhirut 6:9 "You have no greater right in this house than I do"), but it frequently bears other meanings, whether those related to the world of law or those outside it. Thus, for example, the word zekhut may be used in the sense of "permission" (as in the legal term, zekhut yoẓerim, "copyright"), or in the sense of "merits" or "good deeds" chalked up to man's credit. The term zekhut avot – "ancestral merit" – is used to denote the special treatment a person enjoys because of his parents or his lineage (M. Avot 2:2) Similarly, "Every person has merits (zekhuyyot) and sins: one whose merits outweigh his sins is a righteous man; and one whose sins outweigh his merits is evil; half and half – mediocre" (Maim., Yad, Hilkhot Teshuvah 3:1). Another aspect of the term zekhut in the legal context relates to arguing on behalf of a person and defending his actions: "All are allowed to argue for acquittal, and not all may argue for conviction" (M. Sanhedrin 4:1); "Always judge a person leniently" (M. Avot 1:6). In yet other sources, the term is used to denote an advantage or benefit: "A slave benefits from gaining his freedom" (bm 19a).
In like fashion, the terms ḥerut (liberty) and ḥofesh (freedom) bear a number of different meanings in different contexts, which in any case are not identical to the modern term "freedom." On the contrary: according to different sources in Jewish law, man's "freedom" does not express the fact that he is free of all obligations and responsibilities, but rather that he is subject to a system of obligations and precepts. This is clearly evident in the Mishnah, which states that "No one is free but one who studies Torah." In like fashion, Rabbi Judah Halevi, one of the great Jewish poets of medieval Spain, writes in one of his poems that "Slaves of time are under the greatest servitude; only the servant of God alone is free." An echo of this approach is found in the rabbinic dictum that man is not at all free in this world, because he is subject to commandments of "you shall" and "you shall not," and that only in death one becomes free, because when a person is dead, he is free, in the sense of being exempt of the obligation of the commandments (Shab. 30a).
Consideration should be given to the fact that in the Bible itself the word ḥofesh does not appear in its modern sense of freedom, except in the phrase bigdei ḥofesh ("precious clothes," Ezek. 27:20, where its meaning is not altogether clear), or in the sense of an action or result (e.g., Exod. 21:5, "I will not go out free"; Deut. 15:12–13, 18: "you shall let him go free from you"; Exod. 21:2, 25–27: "He shall go out free… he shall let him go free"). In later sources, the term appears as an expression of freedom and liberty. Thus, for example, in the ancient book of Ben Sira it says: "Treasure an educated slave, do not keep him from freedom" (Sira 7:22).
The term ḥerut likewise does not appear at all in the Bible, and is mentioned for the first time in the words of the Sages (thus, for example in the Passover blessing: "You have brought us out from slavery to liberty," Pesaḥim 10:5, and from there in the Passover Hagaddah). At the same time, another term, deror, which in later generations was seen as standing for liberty and freedom, does appear in the Bible. Its first appearance relates to the commandment of the jubilee year, in a verse also inscribed on the Liberty Bell of the United States, commanding Israel: "And you shall hallow the fiftieth year, and proclaim liberty throughout the land unto all the inhabitants thereof " (Lev. 25:10). The Sages noted the special use of the word deror, which appears only once in the Torah, here and nowhere else. (In the words of the prophets Isaiah, Jeremiah, and Ezekiel, this expression appears another six times, expressing the freedom of one who is liberated from slavery. See, for example, Isaiah 61:1: "to proclaim liberty to the captives"; Jeremiah 34:8: "to proclaim liberty unto them"; and ibid. 15: "proclaiming liberty every man to his neighbor"; ibid. 17: "to proclaim liberty, every man to his brother, and every man to his neighbor; behold I proclaim for you a liberty"; in Ezekiel 46:17: a "year of liberty" is mentioned as a synonym for the jubilee year. It should be noted that the word deror as the name of a bird already appears in the book of Psalms (84:4): "Yea, the sparrow hath found a house and the swallow [deror] a nest for herself "). According to the Sages, the word deror here signifies freedom of movement and the right to live anywhere (with regard to freedom of movement, see below).
Classification of Rights
There is a tendency in contemporary law to distinguish among different kinds of rights. One distinction made is between "human rights," afforded to all human beings as such (as broadly manifested in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948), and "civil rights," only granted to the citizens of a state per se (such as the right to vote and to stand for election). There is a similar tendency to distinguish between "primary rights," such as a person's right to life, and "political rights" (freedom of expression, freedom of association, freedom to demonstrate, assemble and march, freedom of movement, etc.; see below), whose power and scope is wider, and secondary rights (such as some of the social rights), whose scope is more limited.
A similar, though not identical, distinction exists in Jewish law. Notwithstanding that it is a universal legal system, applying and operating throughout the world and not only within the borders of particular country (as is the case with modern "territorial" legal systems, which only apply within the territory of a given country, within defined borders), Jewish law also recognizes the distinction between what are known today as "human rights," applicable to all human beings as such, and rights with less force and scope, afforded to a more limited group. Thus, for example, the right to vote and stand for election (see below) is not afforded to all residents, but only to those who meet certain conditions of competency.
The Source of the Rights
In Jewish law, man's rights and liberty stem from the fact that he was created in God's image, as described in the book of Genesis (Gen. 1:27). From Adam on, this theory developed and was also introduced into the laws of nations.
Man's uniqueness, and his resultant obligations, are emphasized in the Talmud (Sanhedrin 38a): "Accordingly man was created as an individual, to teach us that whoever destroys a single soul, is as if he destroyed an entire world; and to ensure peace among men, so that no person can say to another, '[My] father is greater than your father!'… and to praise the greatness of the Holy One blessed be He, for when a man mints a number of coins from the same material, they are all identical to one another, whereas the King of Kings, the Holy One blessed be he, created all men in the image of the first man and yet not one of them is identical to another. Therefore each and every one must say 'the world was created for me.'"
Another source of great importance for human rights and the liberty that goes with them is the Exodus from Egypt, which served as the basis for the formation of Jewish culture and Jewish law, particularly with regard to man's freedom (see *Imprisonment; *Imprisonment for Debt, and see R. Hirsch's Commentary on Exodus 22:20, Gateshead (1973), vol. 2, p. 373).
Alongside those rights explicitly mentioned in the Bible, over the centuries, a theory of human rights developed in Jewish law. Scholars of the Mishnah and Talmud, followed by the geonim and the earlier and later authorities in all of Israel's Diasporas, developed and cultivated a defense of the different rights, and by means of various legal tools (such as regulation and custom, explication and rulebooks) created a broad system of rules and norms intended to protect human rights. In the sub-sections below examples are given from different places and times, expressing the wonderful creativity of Jewish law in developing a theory of human rights in all its shades.
The law courts in Israel and throughout the world acknowledge that Jewish law is one of the potential sources of human rights. An eloquent expression of this can be seen in the ruling of the Supreme Court, as given by Justice M. Elon: "Our sages taught us 'Beloved is man in that he was created in [God's] image' (Avot 3:14). This fundamental value in the world of Judaism serves as the infrastructure, the very heart of the principle of man's liberty (Justice M. Elon: M. App. 1/87 Denenashvili et al. v. State of Israel, 41 (2) PD 289, and Cr. App. 2145/92 State of Israel v. Guetta, 46 (5) PD 710–711. See also: M. Elon, "Le-Zikhro shel Moshe Silberg," in: Shenaton ha-Mishpat ha-Ivri 2 (5735), p. 4; ala 184/87 Attorney General v. Anon. et al., 42 (2) pd 676. And cf. the ruling of Justice Elon, ca 506/88 Yael Shefer, minor, v. State of Israel, 38 (1) pd 116, under *Medicine and Law). Similarly, the Supreme Court represented by Justice Orr based itself on the principle of the sanctity of life inferred from the creation of man, ruling that dialysis treatment should be given to a minor patient even in contradiction to the parents' wishes (ala 5587/97 Attorney General v. Anon, 51 (4) pd 838–839).
The Supreme Court also invoked the idea of man's creation in the image of God in disqualifying a Knesset election list whose platform contained racist motifs. Sharply criticizing the temerity and sham involved in this list claiming to speak in the name of the Torah of Israel, Justice Elon said, among other things: "A basic foundation of Judaism is the idea that man is created in God's image (Gen. 1:27). This is how the Torah of Israel begins, and it is from this that halakhah derives fundamental principles regarding the value of man – all men – their equality and their being beloved [of God]. 'He [i.e., Rabbi Akiva] used to say: Beloved is man, who was created in [God's] image. Even more beloved is he, that it was made known to him that he was created in the Image, as it says (Gen. 9:6) "In the image of God He made man" (Avot 3:18). And thus, in this last verse, the prohibition against the spilling of blood by the sons of Noah is explained, even before the Torah was given" (ea 2/84 Moshe Naiman v. Chairmen of the Central Elections Committee for the Eleventh Knesset, 39 (2) pd 298. See also his comments in ca 294/91 Ḥevra Kadisha Kehillat Yerushalyim v. Kastenbaum, 46 (2) pd 512; and the comments of Justice M. Cheshin in fh 7325/95 Yediot Aḥaronot Ltd. et al. v. Kraus 52 (3) pd 1).
On a number of occasions, the Supreme Court relied on the biblical concept of man being created in God's image, as well as its stringent approach towards murderers who have taken the life of any human being. Thus, in a ruling dealing with the case of a Jew who murdered innocent Arabs, Justice Cheshin wrote:
A person – any person – is a world in himself. A person – any person – is one, individual and unique. No one is like any other. One who was will not be again, and one who has gone will not return. And our teacher, the Rambam, taught regarding the uniqueness of man (Yad, Sanhedrin 12:3): "Man was created alone in the world, to teach us that one who destroys a single soul in the world, is as if he has destroyed the whole world, and one who saves a single soul in the world is as if he has saved the whole world. For all those who come into the world are created in the form of Adam, and the face of no man is the same as that of any other. Accordingly, each and every one can say: the world was created for me." This is man, and this is his uniqueness. Who can dare say such a thing about a book or about a safe? (Cr.A. 1742/91 Ami Popper v. State of Israel, 51 (5) pd 305; and cf. Cr.A. 6841/01 Yosef Biton v. State of Israel, 56 (6) pd 800; Cr.A. 6535/01 Kusirov v. State of Israel, 57 (3) pd 565; Cr.A. 9804/02 S.S. v. State of Israel, 58 (4) pd 462; fta (Tel Aviv-Jaffa) 1137/02 State of Israel v. Nasser Mahmoud, unpublished).
The creation of man in God's image also served as the foundation for a National Labor Court ruling (nlc 265–56/04 Shimon Ḥassid v. The National Insurance Institute, unpublished), in which the court accepted the claim of a homeless person that the National Insurance Institute should give positive consideration to awarding an income allowance to him and others like him, giving a broad interpretation to the law intended to ensure that the indigent have the right to live in dignity (see below). Similarly, the biblical description of the creation of man, both male and female, served as the basis by which the Supreme Court, represented by Justice Cheshin, anchored, among other things, the obligation to provide equal opportunities to both sexes when entering the workforce (hc 2671/98 The Israel Women's Lobby v. Minister of Labor and Social Affairs, 52 (3) pd the 36), as well as with regard to the terms of retirement from it (hc 6845/00 Itana Niv et al. v. National Labor Court, 57 (6) pd 663).
The Various Rights
the right to life
The right to life is a value of prime importance, set down at the beginning of the various bills of rights. As the fundamental approach of Jewish law speaks, not only of man's rights, but first and foremost of his obligations, it imposes upon the human being an obligation to guard his/her own body, its most important expression being the commandment "Therefore take good heed to yourselves" (Deut. 4:15). Apart from exceptional cases (e.g., the prohibitions of bloodshed, idolatry and adultery), when cardinal values enter into the balance, the obligation to preserve life outweighs all other duties. A person is therefore commanded to desecrate the Sabbath in order to save a life, "for nothing stands in the way of saving life." The Sages expounded the verse "He shall live in them" (Lev. 18:5) – "and not die in them," (Yoma 85b) as meaning that the Torah's commandments have been given to live by and not to die by. According to some of the Sages, even with respect to those transgressions about which it was said that a person must allow himself to be killed rather than commit the transgression, this law only applies in public, in the presence of ten or more people. In private, however, a person must commit the transgression rather than allow himself to be killed. A special problem exists when a balance must be struck between two rights of the same type (see ea 84/2 Naiman v. Chairman, Central Elections Committee, pd 39(2) 225, per Justice Elon, and see *Euthanasia in *Medicine and Law). The definition of the State of Israel as a "Jewish and democratic state" finds expression in various ways related to human dignity and freedom. Thus, for example, with the exception of certain crimes of exceptional severity (e.g., crimes against humanity and the Jewish people, and the Nazis and Nazi Collaborators Punishment Law) the Israeli legislator abolished the death penalty that had been administered during the mandatory period. Similarly, corporal punishment was abolished by the Punishment of Whipping (Abolition) Law 5710 – 1950 (see *Values of a Jewish and Democratic State; *Human Dignity and Freedom; *Punishment).
the right to dignity
Unlike contemporary law, Jewish Law views human dignity not only as a right, but as an obligation imposed upon man, stemming from the fact that he was created in the image of God. For this reason, he is neither permitted nor able to waive his dignity, even if he so desires (see *Human Dignity and Freedom).
the right to equality and the prohibition of discrimination
The right to equality derives from the creation of man, as described in the Torah, as a solitary individual and a free man, from whom all of mankind has descended, such that no man can say to his fellow, "My father is greater than yours" (see above). An echo of this is found in the preamble to the United Nations' Universal Declaration of Human Rights, which recognizes "the inherent dignity and of the equal and inalienable rights of all members of the human family." Various expressions of the value of equality already appear in Scripture. Thus, for example, the Torah commands: "One law shall be to him that is homeborn, and to the stranger that sojourns among you" (Ex. 12:49; and see below, in the section dealing with the equality of nations). Many expressions of the value of equality are to be found in rabbinic literature. Thus, for example, the tanna Ben Azzai, maintains that the value of the equality of the sexes – embodied in the verse, "male and female He created them" (Gen. 1:27) – is "the greatest principle in the Torah," as opposed to the position of his colleague Rabbi Akiva, who sees the verse, "you shall love your neighbor as yourself " (Lev. 19:18) as the Torah's greatest principle (tj Ned. 9:4 (41c)).
The value of equality also finds expression in the words of certain Sages with respect to specific issues. Thus, for example, two contradictory approaches are found in rabbinic literature regarding Torah study. The one is patently non-egalitarian, awarding the right to education exclusively to the children of the intellectual and economic elite (see below, sub-section dealing with the right to education). In contrast, there is an egalitarian approach that opens the gates of the study hall to all: "You might say that only the children of the elders, the children of the distinguished, should study. Therefore, the verse states: 'For if you shall diligently keep' (Deut. 11:22) – teaching that all are equal in Torah. Similarly it says: 'Moses commanded us a Torah, the inheritance of the congregation of Jacob' (Deut. 33:4). It is not written there: 'Priests, Levites and Israelites,' but rather 'Jacob.' Similarly it says: 'You stand this day all of you' (Deut. 22:9)" (Sifrei, sec. 48 (ed. Finkelstein, p. 112)).
The obligation of equality applies likewise to legislation enacted by the king, which must be fitting and non-discriminating: "Any law promulgated by the king to apply to everyone and not to one person alone is not deemed robbery. But wherever he takes from one particular person only, not in accordance with a law known to everyone but by doing violence to this person, it is deemed robbery" (Maim., Yad, Gezelah va-Avedah 5:14).
Alongside such statements, Jewish Law contains no small number of laws that appear to violate the principle of equality and seriously discriminate on the basis of sex, race, nationality, age, or some other factor. In many, but not all such cases, the discrimination can be explained as a "permissible distinction" based on the principle that there are no absolute rights, and that even the value of equality is set aside by other values, and that the discrimination is for an "appropriate purpose and to an extent no greater than is required" (Section 8, Basic Law: Human Dignity and Freedom). Thus, for example, the preferred status of the priests and Levites is explained by historical reasons (their non-participation in the sin of the Golden Calf), or by their unique role as officiants in the Temple. Similarly, the disqualification of women for positions of public authority, and the absence in Scripture of their right to inherit (see *Inheritance) can be explained as stemming from the different social role they play from that of men (see at length the entry *Woman). Nevertheless, alongside the attempts, some clearly apologetic, to justify laws that appear to be discriminatory, the Sages of Israel have over the course of the generations made courageous attempts to mitigate the severity of these cases of discrimination to the point of their total abolition. For example, the ruling that prevents a non-Jew from serving in the Israeli Knesset or government, based on the biblical prohibition, "You may not set a stranger over you, who is not your brother" (Deut. 17:15), has effectively been abolished in the State of Israel. Similarly, the prohibition preventing woman serving in the Knesset or in any other public role (see *Woman: The Judicial Perspective) has in practice been abolished. Mechanisms have been established allowing a woman to receive an equal share of an inheritance (see *Inheritance, and see: R. Isaac Herzog, Teḥukah le-Yisra'el al pi ha-Torah).
The obligation of equality has ramifications in various circumstances and contexts. Thus for example, it is stated that a master/employer must provide his servant/worker with living conditions similar to his own: "'He shall be with you' – with you in food, with you in drink, with you in clean clothing: you [= the master, employer] may not eat fine bread while he eats coarse bread; you may not drink old wine while he drinks new wine; you may not sleep on cotton-wool while he sleeps on straw" (Sifra, Behar, sec. 5). Special emphasis was placed on the equal treatment of litigants in court (see *Bet Din), this being a fundamental principle of natural justice. Similarly, the rabbinic authorities have stressed not only the equality of rights, but also the equality of obligations and responsibilities.
In ancient legal systems, the "other" – the blind, the deaf, the crippled, the leper, and the like – was often rejected and subjected to unfavorable discrimination. Some viewed his condition as "a heavenly decree," a punishment for his sins, and hence as a reason to distance him from society. Thus, for example, during the Middle Ages, the term "leper" was applied to all of society's outcasts. Various popular beliefs that adhered to lepers contributed to their being cut off from community life. Testimony to this phenomenon is found in various sources of Jewish Law: for example, in the words of R. *Moses of Coucy, a 13th-century French Tosafist, who wrote in his Sefer Miẓvot ha-Gadol that a leper who wishes to enter a synagogue must "construct for himself a high partition four cubits wide, and enter first and exit last" – all this in order not to come into contact with the other members of the community.
As opposed to this approach, some authorities of Jewish Law viewed physical deformities as a "force majeure," which does not constitute grounds for denial of the "other"'s rights or discrimination against him. An example of the caution that must be practiced in this matter may be found in a responsum authored by Rashi (Resp. Ḥakhmei Ẓarefat ve-Loter, no. 40; see also A. Grossman, Ḥakhmei Ẓarefat ha-Rishonim (Jerusalem 1995), p. 140). In this responsum, Rashi rejects the argument of a man who wished to divorce his wife because she had been stricken with leprosy, and sharply reproaches him for his conduct.
pluralism, freedom of expression, and the public's right to know
In modern constitutional law, pluralism – the multiplicity of views and the freedom to express them – has a most important place among human rights; some see it as the "queen of rights." This finds expression in various constitutions (such as the United Nations' Universal Declaration of Human Rights and the U.S. Constitution) that have established this principle and ascribed it supreme importance. Freedom of expression includes not only the right to express opinions, but also the right to hear them or, as it is usually called, "the public's right to know." The world of Jewish Law contains many expressions of praise for pluralism and multiplicity of views (see *Majority Rule; and see below Pluralism in the World of Halakhah). The great principle in this matter is mentioned already in the words of the Sages with respect to the controversy between the school of Shammai and the school of Hillel, who "disagreed for three years, these saying: The law is in accordance with us, and these saying: The law is in accordance with us. A heavenly voice issued forth and said: Both are the words of the living God" (Eruv. 13b). Nevertheless, on the practical level the matter was eventually decided: "And the law is like the school of Hillel" (ibid.).
As part of the recognition of pluralism and its importance as a value in its own right, Jewish Law assigns a place of honor to speech and to free speech, speech representing man's preeminence over the beast. This was given pointed expression in Onkelos's translation of the verse in the biblical account of Creation: "And man became a living soul" (Gen. 2:7) – leru'aḥ memalela, "a talking spirit." Man is speech, and the freedom to speak is the breath of life. However, even though man was given this freedom, he is commanded to use it wisely, for "in the multitude of words, sin is not lacking" (Prov. 10:19), and "too much talk brings sin." If this is true regarding neutral speech, all the more so regarding talk that involves slander and gossip, about which it is stated: "Guard your tongue from evil, your lips from deceitful speech. Depart from evil, and do good" (Ps. 34:14–15; and see above regarding man's right to a good name).
Despite the great similarity in certain matters, Jewish Law's conceptual starting point regarding freedom of speech is different from that generally accepted in our day, and thus its normative ramifications are also different. Modern law tends to justify this right with various principles inherent in it, including: clarifying the truth; strengthening democracy; "letting off steam," which in the absence of freedom of speech is liable to burst out in violent and undesirable channels; and self-realization. An examination of these principles teaches that most if not all of them are compatible with the principles – if not necessarily the particulars – of freedom of expression in Jewish Law. Nevertheless, it should not be inferred from this that the normative rights stemming from them, and especially its scope and application, are identical to those of Jewish Law.
Whereas modern law is occasionally ready to retreat from the truth in order to actualize freedom of expression and allow "freedom of false expression" (hc 6126/94, Senesh v. Broadcast Authority, pd 53(3) 817; hc 316/03, Bakri v. Film Censorship Board, pd 58(1) 249), Jewish law has sharp reservations about such an approach, and commands a person to distance himself even from that which contains the "dust" of falsehood. The sole allowance for veering from the truth is "for the sake of peace," and even this is strictly limited (Yev. 65b; Maim., Yad, Gezelah va-Avedah 14:13).
In contrast to modern law, which sees freedom of expression as an important component of man's autonomy and ability to achieve self-realization, various approaches in Jewish Law see speech as a necessity that should be limited. It is against this background that one needs to understand the dicta of the Sages in praise of silence (e.g., "a protection of wisdom is silence" (M. Avot 3:13); "a word for a sela (Talmudic measure of value), silence for two") (Meg. 18a).
Freedom of expression finds an anchor in Jewish Law in the sharp criticism of the prophets of Israel, who severely reproached both the authorities and private individuals. For example, "Your princes are rebellious, and companions of thieves; everyone loves bribes, and follows after rewards; they judge not the fatherless neither does the cause of the widow reach them" (Isa. 1:26; and see H. Cohn, Zekhuyot Adam ba-Mikra u-ba-Talmud; and the words of Justice Elon, ea 2/84 Naiman v. Chairman, Central Elections Committee, pd 39(2) 294; idem, Ha-Mishpat ha-Ivri, 1553–1557; Jewish Law (1994), 1846–1850; Jewish Law (Cases and Materials) (1999), 523–38. Indeed, the words of the prophets frequently stirred up the wrath of the ruling power, which did not always limit itself to a sharp verbal response, but at times adopted severe measures to forcibly suppress this freedom (see, for example, i Kings 18). According to one tradition, King Manasseh killed the prophet Isaiah and the people stoned the prophet Jeremiah for the opinions they voiced, and echoes of this tradition are found in the Talmud (Yev. 49b). It should also be remembered that the words of a prophet do not express full freedom of speech, for he is not free to say what is on his heart, but rather he is obligated to impart the word of God as he received it, without adding or detracting anything. This is exemplified by the attempts of Moses, "father of the prophets" (Exod. 3:11–12; 4:10–17), and the prophet Jeremiah (1:4–9) to avoid fulfilling the mission cast upon them, and their forced compliance. The obligation to proclaim God's word is so severe that the Sages asserted that a prophet who suppresses his prophecy is liable for death at the hand of Heaven. Moreover, the obligation to prophesy is conveyed exclusively to the prophet, and even he is not permitted to realize it whenever he wants, to the point that sometimes he "prophesies without knowing what he is prophesying" (see bb 119b). The prophet is thus frequently limited in his prophecy, and does not enjoy full freedom of expression, as is accepted in modern law. A prophet is also not permitted to say things that contradict the words of the Torah (Deut. 18:20; Shab. 104a).
Many testimonies are found in the responsa literature of attempts to reduce to a minimum infringement upon freedom of expression, even when committed for an "appropriate purpose" cause. This is sometimes accomplished through narrow interpretation of a rabbinic or communal enactment that clashes with freedom of expression, and at times even through the assertion that the enactment is null and void owing to its clash with this freedom. Thus, for example, Maimonides narrowly interpreted a communal enactment that attempted to prevent individuals from mentioning the name of the head of the Babylonian yeshivah (Resp. Rambam, no. 329 (ed. Blau, p. 596)). Similarly, R. Samuel de Medina narrowly interpreted a communal enactment that prevented members of the community from hearing the words of a sage who had fallen out of favor in the eyes of those who made the enactment (Resp. Maharashdam, vol. 1, no. 16; this responsum only appears in the first edition, and was omitted from later editions). These attempts to limit the freedom of expression of certain sages and silence them lest they compete with the community's leadership are known to us from other places and were not always successful (see, e.g., Resp. Avkat Rokhel, nos. 179–181).
Attention should also be paid to the fact that in contrast to the approach of contemporary constitutional law, according to which freedom of expression ensures the right of every individual to say anything, provided that he does not harm the interests of others, Scripture sometimes reflects a different approach, as exemplified by the attempt of Joshua bin Nun, servant of Moses, to silence Eldad and Medad who were "prophesying in the camp" (Num. 11:27) and his request of Moses to restrain them. In contrast, Moses' cold response, "Would that all the Lord's people were prophets" (Num. 11:29), expressed pluralism in "the marketplace of prophecy," and prevented their punishment, though halakhah has laid down that even when prophecy existed in Israel, not everyone who so desired was permitted to take the crown of prophecy for himself.
in israeli courts
The issue of freedom of expression in Jewish Law has been raised by the Israeli courts in various contexts, both in connection with libel suits (see *Slander) and in connection with constitutional issues, such as the right to run for office in the Knesset, which is part of the freedom of political expression (see below, subsection dealing with the right to vote and be elected), freedom of expression on gravestones, and other matters.
Two court rulings relate to the issue of freedom of expression on gravestones. The Israeli Supreme Court (per Justice Elon) discussed the issue of freedom of expression in Jewish Law at length, noting that, like other rights, this right is also not absolute and can be set aside if its realization clashes with other values, e.g., *human dignity and the sensitivities of other people (ca 92/1482, Hager v. Hager, pd 47(2) 793; ca 294/91. Ḥevra Kadisha Kehillat Yerushalayim v. Kastenbaum, pd 46(2) 464). The Supreme Court discussed this issue in another case dealing with the inscription of a date according to the Gregorian calendar on a gravestone. Justice Englard based his minority opinion on sources in Jewish law that ban such inscriptions, and in such circumstances prefer to set aside freedom of expression in favor of other values that conflict with it [ca 97/6024, Fredrika Shavit v. Ḥevra Kadisha Rishon Le-Zion, pd 53(3)600]. Another ruling discussed the broadcasting of a film on the Sabbath, where the main figures in the film, who were religiously observant, objected to its broadcasting owing to the Sabbath desecration profanation involved. Justice Dorner (in a minority opinion) sided with the plaintiffs, basing her opinion upon the views of those halakhic authorities who set aside the principles of freedom of expression and the public's right to know because of the Sabbath desecration that the realization of these rights would involve (hc 1514/01 Ya'akov Gur Aryeh v. Television's and Second Television Authority, pd 55(4) 282). She reviewed the various opinions on the matter in Jewish Law, and referred to the lenient approach that allows an observant film producer to sell his films to the Broadcasting Authority even when he knows that they will be broadcast on the Sabbath (M. Elon R. David Setav, "Ẓulam be-Yom Ḥol, Shudar be-Shabbat," in: Nekudah, 211 (1998), 52; and see R. Shlomo Zalman Auerbach, "Shiddur Radyo Ḥozer be-Shabbat," in: Teḥumin, 17 (1997), 13).
freedom of conscience
Another important aspect of the modern idea of freedom is freedom of conscience, allowing a person to believe whatever his heart desires – not limited to matters of religious faith (see below, sub-section on the freedom of religion and ritual) – and to act in accordance with the demands of his conscience. This freedom is anchored in article 18 of the Universal Declaration of Human Rights and in the Declaration of the Establishment of the State of Israel, which promises "freedom of religion and conscience" to all its citizens and inhabitants.
As with other rights, Jewish Law does not speak of freedom of conscience, but of duty of conscience: i.e., that a person is not exempt from fulfilling his civic responsibilities because of the call of his conscience. Jewish Law deals with this issue at length in relation to the question of releasing people from their obligation to share the burden of community troubles owing to reasons of conscience. The issue is discussed in particular in the context of the question of the exemption granted to full-time yeshivah students from service in the Israeli army, and the question of conscientious objectors to military service. Many of the halakhic authorities who addressed this issue emphasized the duty falling upon every individual to share the burden of an "obligatory war," which overrides the duty of studying Torah.
Some have relied on the sharp call of Moses to the members of the tribes of Gad and Reuben: "Shall your brothers go to war, and you sit here?" (Num. 32:6; and see Judges 5:23). Others based their view on the biting Talmudic statement: "Who shall say that your blood is redder; perhaps the blood of the other is redder" – i.e., just as you ask your neighbor to risk his life to defend you, so are you obligated to risk your life on his behalf (Pes. 28b).
This issue of conscientious objection and Jewish Law was discussed in the Israeli Supreme Court, with respect to the refusal of a conscientious objector to serve in the Israeli army during the Lebanese war (hc 734/83, Shein v. Minister of Defense, pd 38(3) 404). Justice Elon denied the petitioner an exemption from military service, basing his ruling on numerous sources of Jewish law dealing with those seeking an exemption from army duty (e.g., Deut. 20:1–9; Judges 7:3; 1 Macc 3:55; M. Sotah 8:2–7; Tosefta (ed. Zuckermandel), Sot. 7:18–24; Sifrei, Devarim, secs. 192–197; Yad, Melakhim, 7; Sefer ha-Ḥinnukh, Aseh #502; and others). (See *Military Law.)
the right to vote and to be elected
The right to vote and to stand for election is one of the most important of all civil rights, as a clear expression of the democratic process. Because of its importance, in various legal systems, such as American law and Israeli law, this right has been established as an "entrenched section of the law," which can only be changed by a special majority of members of the House of Representatives (the Knesset).
Study of the sources of Jewish law shows that, notwithstanding that the system of governance reflected in many of them is very different from the democratic system in use today, there are many principles to be found in them that are equally valid and applicable today. (See in greater detail: M. Elon, "Demokratyah, Zekhuyot Yesod u-Minhal Takin be-Pesikatam shel Ḥakhmei ha-Mizraḥ be-Moẓa'ei GerushSefarad," in: Shenaton ha-Mishpat ha-Ivri, 18–19 (5762), 9–63.)
A study of the Bible and of early rabbinic sources reveals that actual "election" processes are hardly to be found, and that the majority of "elected representatives" mentioned there are actually appointed and not elected to their position in a democratic process – nor did the biblical king receive his office through any actual process of election. Despite the fact that from the literal meaning of the verse, "you shall surely set him as king over you" (Deut. 17:15) it might be concluded that there was indeed a democratic process here of election by the people, the rest of the verse – "whom the Lord your God shall choose" – shows that this is not the case. This passage also shows us that the right to be elected was not given to everyone, but was limited only to the children of Israel: "from among your brethren shall you set a king over yourselves, you may not put a foreigner over thee, who is not your brother" (ibid., and see above with regard to equality). Alongside this limitation, a further restriction was added at a later stage, by which "no king may be raised first other than in accordance with a court of 70 elders, and according to a prophet" (Maim., Yad, Melakhim 1:3). This restriction ensured a kind of "judicial review" of the selection process.
Restrictions relating to the right to vote may also be found in the sources of Jewish law. Thus, for example, it states in the Frankfurt Rulebook from 1774 that anyone has who has not paid his taxes that year may not take part in the elections, and the same is true of one regarding whom "at least two years have not passed since his wedding" (Rabbi R.D. Dessler, Shenot Dor ve-Dor (Jerusalem 2000), p. 413). A similar restriction existed in the Mantua community in Italy, where only people who had paid all their dues to the congregation and had lived within the city for a long time, at least 25 years, could participate in elections (S. Simonson, Toledot ha-Yehudim be-Dukhasut Mantova (Jerusalem 5723), p. 240).
Various restrictions were also placed on the right to stand for election, clearly reflected in the *Takkanot ha-Kahal (communal enactments). Thus, for example, in a number of towns of Europe there was a regulation preventing a doctor or a broker from standing for election as "trustee" of the congregation, because these occupations were considered to be of low rank and were likely to undermine the public's faith in its leadership (Y. Baer, Toledot ha-Yehudim be-Sefarad ha-Noẓerit (Tel Aviv 1965), 256). The regulations of the Frankfurt congregation included a rule stating that a person standing for appointment as a community leader must have been married for at least nine years; for the position of "community dignitary" – at least six years; and for the position of gabbai (manager of synagogue affairs)– at least three years (Dessler, ibid., p. 413). Another community rule enacted in Frankfurt states that only a person with considerable financial capital may be elected to the community committee (Y. Heilperin, Zion, 21 (1956), 64). This requirement apparently arose from the need to ensure the financial independence of the elected representative: in the absence of a salary for public positions, representatives needed to be of independent means in order to be able to devote their time to the position and to be free of extraneous pressures and considerations. In a number of communities in Christian Spain, a minimum tax payment was set as a condition for realization of the right to stand for election (Y.T. Assis, Ha-Yehudim be-Malkhut Aragonya ve-Ezorei Ḥasutah, in Moreshet Sefarad, H. Beinart, ed., Jerusalem 1992, p. 62 and note 115).
Restrictions of a different kind were applied to the expenditure permitted in an election campaign. Thus, for example, a rule was enacted in one of the Polish towns under which election expenses were limited to no more than six gold pieces, to prevent the waste of public money on the elections (S. Idelberg, "Pinkas Schnadau," in: Galed, 3 (1976) 304 #30). A similar provision was introduced in Israeli law, in the Parties Law 5752 – 1992, and the Party Financing Law, 5733 – 1973, which imposed a ceiling on the expenses permitted in an election campaign.
Another form of disqualification from election applied to individuals with a criminal past. In modern legal systems such as the Israeli system, criminals do not lose the right to vote, and a certain time after they complete their sentence they are entitled to stand for election, even if the crime they committed carries moral turpitude. On the other hand, in some Jewish congregations the right to vote and stand for election was taken away permanently from criminals (I.Z. Kahane, "Sheloshah Kheruzim mi-Pinkas de-Kehillah Kedoshah Tribitsh," in: Koveẓ Al Yad 14 (1948), p. 187). A case came before the Ḥatam Sofer regarding one of the leaders of a congregation whose other community leaders wanted to take away his right to vote or to stand for election for a period of ten years because of a crime he had committed. The Ḥatam Sofer fiercely denounced the faulty procedure they had followed, insisting that disqualifying a person from realizing his right to vote and stand for election only be done after review by the bet din and the local rabbi. In this regard, he added that, even if there had been defects in the election procedure, there was no reason to rush to invalidate it if these defects were only discovered after the election was over (Resp. Ḥatam Sofer, Likkutim, yd no.38).
in the courts
The issue of a criminal's right to vote recently came up in the Israeli Supreme Court regarding the matter of a prisoner who wanted to realize his right to vote. Justice Elon, sitting in judgment, based his decision giving the prisoner the right to vote on the basic principle of Jewish law "once he has been flogged – he is like your brother" (M. Makkot 3:15) (hc 337/84 Hokama v. Minister of Interior, 38 (2) pd 826; and see *Imprisonment). The question of the right of women to vote and stand for election was also discussed in depth in the ruling of Justice Elon in the Shakdiel affair (hc 153/87 Shakdiel v. Minister of Religious Affairs, 22 (2) pd 221, and see under *Woman: The Judicial Perspective).
Freedom of Demonstration, Assembly, and Procession
Freedom to demonstrate, assemble and march is an aspect of freedom of expression. In a modern, democratic country this freedom is one of the most important expressions of freedom of political expression, which differentiates a totalitarian regime from a democratic regime. A considerable portion of rules of Jewish law originated in entirely different political realities, which did not necessarily operate according to the democratic rules accepted today. But notwithstanding the differences, many democratic principles can be found which are similar, if not always identical, to the generally accepted rules today. Thus, for example, Jewish law provided a real possibility for those in disagreement with the leadership to express their opinions, and even to make use of the public domain for this purpose. Nevertheless, attempts can be seen on several occasions in the sources of Jewish law to silence these protesting voices – attempts which are not always successful. An early manifestation of this can be seen in the figure of the biblical prophet, crying out in public against various injustices, such as the strong words of the prophet Isaiah (1:21–23): "How is the faithful city become a harlot! She that was full of justice, righteousness lodged in her, but now murderers. Your silver is become dross, your wine mixed with water. Your princes are rebellious, and companions of thieves; everyone loves bribes, and followed after rewards; they judge not the fatherless, neither does the cause of the widow come before them."
One of the wonderful expressions of the right of the individual to "demonstrate" and protest against an injustice that has been done is the custom of "delaying [prayer] services" (alternatively referred to as: "canceling prayers," "cancellation of regular prayers," "delaying the public reading of the Torah"). This custom originated in the Jewish congregations of the Middle Ages, and it is used even today as a demonstrative sanction by a person who wishes to protest against an injustice he has suffered. The "delayer" is given permission to stop the prayers or the Torah reading, and will not allow the congregation to continue until his complaint has been heard. The responsa literature has preserved fascinating answers illustrating the considerable power of protest of this custom, often leading to a solution of the dispute that was the cause of the protest. (Teshuvot Maimuniyyot, Nashim #25; Maharam of Prague, 249; Or Zarua, 1 no.52; and see also: A Grossman, "Reshito ve-Sodotav shel Minhag Ikuv ha-Tefillah," in: Millet, 1 (1983), 199–219; M. Ben-Sasson, Ha-Ẓa'akah le-Ẓibbur be-Beit ha-Knesset be-Araẓot ha-Islam bi-Ymei ha-Beinayim, in: S. Elitzur et al. (eds.), Knesset Ezra (Jerusalem, 1994), 327–350; Y. Ta-Shma, Minhag Ashkenazi ha-Kadum, 303 and note 13; S. Golden, Ha-Yiḥud ve-ha-Yaḥad, 157–61).
freedom of association
In contemporary discussion of human rights, the right of association constitutes a fundamental right. Some view it as an independent right, while others see it as a sub-category of freedom of expression. In light of the different legal reality, association in Jewish Law is not established in a formal manner as is common today (by means of the establishment of a corporation, non-profit association, cooperative society, or the like (see *Partnership; *Legal Person), but principles relating to the right of association are already found in various contexts within Jewish Law. Thus, for example, already in the tannaitic period (first and second centuries c.e.) enactments were made recognizing the right of members of a particular profession to join together to organize work relations between them – enactments reminiscent of those ordained by the members of the medieval guilds: "The wool dealers and dyers may declare: 'We shall be partners in all merchandise that comes into the town.'… The donkey drivers may declare: 'We will provide another donkey to anyone whose donkey dies.'… The boatmen may declare: 'We will provide another boat whenever anyone's boat is lost" (Tosefta, bm, 11:24–26). Similar ordinances were established in the modern period. Thus, for example, R. Moses Feinstein ruled that workers are permitted to organize in trade unions and to enact ordinances that are binding upon all of their members (Resp. Iggerot Moshe, vol. 2, Ḥm, no. 58).
Responsa literature contains many testimonies to attempts to reduce infringement upon the freedom of association. This is sometimes accomplished through narrow interpretation of a rabbinic or communal enactment that clashes with freedom of association, and at times even through the nullification of the enactment owing to its clash with that freedom. Thus, for example, communal enactments that attempted to prevent individuals from establishing their own synagogues, that would give expression to their special customs, were reduced to a minimum. Such enactments were particularly common in the lands of the Ottoman Empire, following the expulsion of Jews from Spain and Portugal, when they established new "congregations" in many cities. The native residents saw the expansion of these "congregations" as posing a threat of the establishment of unbridled opposition and a breakdown of the social structure that had enormous economic importance. On the other hand, sweeping prohibitions limiting the right of association violated the freedom of the residents, and therefore they were interpreted narrowly, out of a desire to prevent such violation to the extent possible, unless it was done for "a worthy cause." Thus, for example, R. Samuel de Medina narrowly interpreted a communal enactment that indiscriminately prohibited the establishment of new synagogues in Salonika (Resp. Maharashdam, yd, no. 152).
freedom of movement:
In modern law, freedom of movement is perceived as among the most basic of all human rights. Man's liberty is manifested, among other things, in his ability to move freely from place to place, to live wherever he chooses, to leave the country and to enter it. In the modern discussion of rights, this right is an additional expression of the autonomy and liberty of the individual. Like other rights, this right is not absolute and must be balanced against such other fundamental rights as security of the state, public order, property rights etc.
Limitations on freedom of movement are divided into many stages: the most severe restriction of freedom of movement and the right to liberty is locking a man in prison, under an arrest warrant or detention order, and restricting him to movement within the prison walls. Of lesser severity is restricting freedom of movement to a particular place of residence, an alternative to imprisonment making the accused's release contingent upon his remaining at a particular address, known as "house arrest." A less severe measure is the restriction of his movement to a particular city, and even less severe is the restriction of freedom of movement by prohibiting a person from leaving the country, or prohibiting an accused from leaving the country, or curtailing the freedom of movement of a debtor which conflicts with the desire of society and the legislator to protect the property rights of his creditor and to enable him to collect the debt. An even less severe measure is a prohibition against a person from entering a certain country, such as prohibiting visits to an enemy state. In addition to the general restrictions mentioned above, there may at times be restrictions on freedom of movement in specific cases, both by force of legislation or by force of a court decision. Thus, for example, in the case of a demonstration or visit by a state personage, there may be restrictions on movement in certain areas for a limited time period in order to maintain public order and ensure the safety of the participants. Needless to say, the freedom of movement of an individual in the public domain is restricted by virtue of the wish to maintain public order and security. In certain cases (such as closing roads to traffic on the Sabbath), freedom of movement is set aside in favor of freedom of religion or the wish to avoid harming "religious sensibilities."
Jewish law rejects limiting freedom of movement and justifies it only for an appropriate purpose and insofar as it does not exceed the minimum required. The emphasis on freedom of movement as a significant component and basic principle of human freedom is expressed in the verse relating to the precept of the Jubilee year (also inscribed on the American Liberty Bell): "And you shall hallow the fiftieth year, and proclaim liberty throughout the land unto all the inhabitants thereof " (Lev. 25:10). The Sages took note of the special use of the word deror (liberty), which only appears this one time in the Torah and not in other places, where the word used is usually ḥofesh [freedom]. They interpreted this as referring specifically to freedom of movement and the right to live anywhere, and said that "liberty [deror] is the language of freedom [ḥerut]… like a person who lives everywhere and carries his merchandise to every country" (Rosh Hashanah 9b). Rashi adds (ad loc.) "one who lives wherever he wants, and is not subject to others."
On the other hand, even in the Bible there are already a number of restrictions on freedom of movement of a person or a group of people in various circumstances. Thus, for example, freedom of movement in or around holy places was restricted. At the time the Torah was given, the children of Israel were forbidden to even approach Mount Sinai (Exod. 19:12). There were special commandments with regard to the Tabernacle (and later, the Temple), whereby people who were unclean for various reasons, lepers, those with gonorrhea and those contaminated by the dead were not allowed to come near. On the other hand, the High Priest was proscribed from leaving the confines of the Temple during mourning: "neither shall he go out of the sanctuary, nor profane the sanctuary of his God" (Lev. 21:12). Another restriction on freedom of movement is given with regard to the tribes of Israel on the Sabbath: "see that the Lord has given you the Sabbath; therefore he gives you on the sixth day bread for two days; abide ye every man in his place, let no man go out of his place on the seventh day" (Exod. 16:29). This restriction was the source for the prohibition against going beyond "the Sabbath boundary," a concept developed in the Oral Law. Further restriction on freedom of movement is found in the institution of cities of refuge. A person who has committed murder by mistake or mishap is commanded to flee to one of the cities of refuge, and is forbidden to leave "until the death of the High Priest." (Num. 35:25) This restriction, however, is voluntary and not mandatory, and is intended to protect the killer from being avenged by the "blood avenger."
An extensive review of the limitations on freedom of movement can be found in the literature of the Sages and in post-talmudic halakhic literature. Thus, for example, a person is prohibited from leaving the land of Israel and going abroad unnecessarily. Similarly, there is mention of a prohibition against Jews traveling to Egypt or living there, based on the verse: "You shall not see them again any more forever" (Exod. 14:13; tj Sukkah 5:1 (55b)). In later generations, there were those who sought to impose a similar "boycott of movement" on Jews returning to Spain (following the expulsion from Spain) or to Germany (following the Holocaust), but these prohibitions never took root in practice.
In different communities, where the number of Jewish residents was very limited, members of the congregation were prohibited from leaving the area because it was likely to result in it being impossible to find a minyan (prayer quorum of ten) for prayer on the Sabbath and festivals. An echo of this already appears in early responsa from Ashkenaz (Franco-Germany), as well as in the later period. Another regulation found in the sources of Jewish law restricts the freedom of movement of young people of the congregation to travel outside the town, lest this lead to "acts of immorality" (R. Joseph Caro, Resp. Avkat Rokhel, no. 206). Other examples of restrictions on freedom of movement imposed for "an appropriate purpose" appear in the community rulebooks. Thus, for example, the Lithuanian rulebook (p. 9 #39) mentions a prohibition against the leaders of the congregation going to Warsaw without the authorization of the State Council, lest they participate in the Polish Sejm assembly and contribute to decisions taken against the interests of the community as a whole. The regulation ends with the imposition of severe sanctions against anyone breaching this prohibition, stating that the infringer will be punished with "corporal punishment and financial punishment." Another restriction was imposed in Lithuania on the freedom of movement of wandering beggars. As it appears from this regulation, the increasing number of itinerant beggars wandering from town to town harmed the local poor and opened the way to acts of fraud. Accordingly, the Lithuanian rulebook (p. 17, #88) states that it is prohibited to allow indigents from other cities "to set foot in the towns / cities of Lithuania and Russia" unless they have relatives in town. Similarly, a woman can prevent her husband leaving for another country if there is a suspicion that he will not return and will leave her as an abandoned woman (see *Agunah). In such a case, the "appropriate purpose" of preventing a woman's abandonment takes precedence over his freedom of movement. This restriction is also anchored in Regulation 96(d) of the Rules of Procedure for the Rabbinical Courts: "the Court may discuss an application to prevent a man from leaving the country on the grounds of fear of abandonment." At the same time, if the man deposits a get (religious divorce papers), or even a conditional get (one that comes into force only if he does not return within the stated period of time), the appropriate purpose of preventing the woman's abandonment is achieved, and in this case the man may realize his freedom of movement (Sh. Ar., eh 154:8). The same holds true if there is a ruling that does not impose the obligation of a get on the man: in that case, the woman is not "entitled" to a divorce and the man's freedom of movement takes precedence. Consequently, if the man deposits a guarantee ensuring his return, there is no reason for denying him the freedom of movement. The Supreme Court in Israel has adopted this, among its other considerations, as a possible basis for refusing to extradite a criminal abroad if this is likely to leave his wife in a state of abandonment (see *Extradition).
A prohibition in principle against denying a woman's freedom of movement, alongside a recommendation severely limiting her freedom for reasons of modesty (apparently under the influence of Islam) is mentioned by Maimonides (Yad, Ishut 13:11):
Every woman is allowed to go out to visit her father, or to go to the house of mourning or to a house of celebration to do kindness to her friends and relatives, so that they will also visit her. For she is not in prison, so that she can never come and go. Nevertheless, it is a disgrace if a woman is constantly going about, at times outside and at times in the street. And her husband is to prevent this, and not let her go out more than once or twice a month as is needed. For there is nothing more fitting for a woman than to sit in the corner of her home, as is written, "All the glory of the king's daughter is within" (Psalms 45:14).
At the same time, as we can see from contemporary historical sources, as well as in later periods, this "suggestion" to restrict women's freedom of movement was almost certainly influenced by what was customary in the surrounding Muslim society, and was not upheld in practice: "One who imposes a vow upon his wife that she not go to the house of mourning or to the house of feasting, must give her a divorce and pay her ketubbah money, for he locks her in; but if he does so because of 'another reason' he may do so." That is, restricting the woman's freedom of movement, so to speak "locking her in," is grounds for divorce, unless he claims "another reason" – e.g., that it is known that where she is going there are unruly and licentious people. According to Maimonides, a person who has made a vow denying his wife's freedom of movement must either retract his vow or divorce her, "since it is as if he has imprisoned her and locked her in."
Yet, notwithstanding the restrictions imposed on freedom of movement in certain cases, the halakhic sages imposed strict conditions on their use, limiting it to cases where the "appropriate purpose" was of greater value than denying the person's liberty – and even then they tended to reduce the restriction to the minimum necessary. For that reason, the use of imprisonment in Jewish law was considerably limited. Recognition of man's freedom of movement was also often manifested in rejecting the validity of a stipulation or other charge in an agreement that sought to deny a person this right.
In the State of Israel
The courts in the State of Israel often based freedom of movement on the principles and sources of Jewish law. Thus, for example, in a number of cases applications were made to prevent a husband from leaving the country lest he make his wife an agunah. In one case the Supreme Court discussed the case of a criminal suspected of committing a murder in France where extradition was requested. In connection with the question of extradition, Justice Elon discussed the source of Jewish law on this subject (see in greater detail *Extradition).
freedom of occupation
In modern law, freedom of occupation means man's right "to engage in any occupation, profession or trade" (Section. 3, Basic Law: Freedom of Occupation). According to the democratic understanding, this right is intended to allow a person autonomy in choosing his occupation, and assist him in fulfilling himself, but it does not obligate him to engage in any particular occupation, nor indeed to work at all, but leaves the decision to his individual judgment.
Following from Jewish Law's fundamental approach (see above), occupation is understood by Jewish Law not only as a right or a freedom, but also as an obligation and duty. Whereas modern law allows a person to engage in any profession, but does not obligate or command him to do so, Jewish Law commands a person to work and toil in some occupation that contributes to the promotion of civilization. Like any other right in law in general, and in Jewish Law in particular, freedom of occupation is not an absolute right. Over the course of the generations, various limitations were imposed upon it, some of which stemming from religious laws, others from public interests, and yet others from private interests. The various limitations set upon freedom of occupation may be divided into sub-groups: absolute limitations on certain occupations (e.g., commerce in articles connected to idolatry, lending at interest); conditional limitations that restricted the right to engage in a particular occupation to those who had received a license or authorization (e.g., ritual slaughter); limitations imposed upon members of a certain class (e.g., limitations imposed upon a Torah scholar or a judge not to engage in occupations deemed demeaning in the eyes of the public (or in order to free to study Torah and fulfill the commandment, "And you shall meditate therein day and night" (Josh. 1:7)); limitations on the times of certain occupations (e.g., on the Sabbath and festivals, during the *sabbatical and *jubilee years, and during a period of mourning); and limitations dependent upon time, place, and circumstances (e.g., the prohibition of monopolies and encroachment).
Some of these limitations were imposed through *takkanot (enactments) or *takkanot ha-kahal (communal enactments). Thus, for example, the Talmud records "enactments legislated by Joshua and his court," one of which relates to freedom of occupation with respect to fishing in "the lake of Tiberias." Anyone may catch fish in that lake, provided he uses "only a fish-hook," so as not to interfere with the movement of boats. But only members of the tribe of Naphtali, in whose territory the lake is located, may catch fish by spreading a net or keep a boat there (bk 80b; Maim., Yad, Nizkei Mammon 5:3; and cf. M. Elon, Ha-Mishpat ha-Ivri, 1452; Jewish Law, vol. 2, p. 552). Similarly, limitations were imposed upon merchants who wished to compete unfairly with their colleagues or in cases where they were liable to deprive them of their livelihood (see *Hassagat Gevul). So too, a prohibition was imposed upon the formation of a ma'arufyah (a form of private monopoly), cartel, or monopoly that would be injurious to the public interest (Or Zaru'a, bm 10a, no. 28; Resp. Ge'onim Kadmonim, and elsewhere). Limitations were also placed on freedom of occupation for the purpose of preventing profiteering (see *Hafka'at She'arim).
Various testimonies may be found in the sources of Jewish Law regarding agreements that were reached to limit the freedom of occupation of members of a particular group of people, such as those who engaged in a particular occupation. Thus, for example, the Talmud tells of an arrangement made by an association of butchers, dividing the work days among its members, and imposing a penalty upon those who violated the agreement (bb 9a; and see M. Elon, Ha-Mishpat ha-Ivri, 1:608; Jewish Law, vol. 2, p. 752). In the case under discussion, the agreement had been reached by way of an enactment of all "the townspeople," and nothing may be inferred from it regarding the law applicable to parties who reach a similar arrangement as individuals. Various testimonies regarding similar arrangements that were made as part of an agreement between individuals are found in the responsa literature, where the arrangements are called "restraints of trade" (ketav issur). The halakhic authorities issued various rulings regarding the validity of such arrangements (see, for example, Resp. Divrei Malki'el, vol. 3, no. 153; Resp. Maharsham, vol. 2, no. 22; Resp. Ḥavalim ba-Ne'imim, vol. 3, yd, no. 38). Such stipulations were prevalent in employment contracts, where the employer wished to prevent his employee from exploiting knowledge gained during his employ for his own future advantage or for the advantage of some other employer. The validity of such a stipulation is in doubt, because according to Jewish Law there is a difficulty entailed in acquiring ownership of something not yet in existence or having no substance (see *Acquisition). The problem was resolved, however, by way of an obligation that a person accepted upon himself to perform a certain act in the future, which is valid (Haggahot Maimuniyyot, Shutafin 4:2; Ḥiddushei Ramban to bb 9a; Resp. Rashba, vol. 3, no. 65; Sefer ha-Terumot, Section 64, Sect. 2:1; Tur, Ḥm 60:10).
Alongside the problem of creating the obligation, a doubt exists as to the validity of a stipulation that seeks to violate a person's freedom of occupation. In this regard, it was established that when a limitation benefits none of the parties, but is intended only to restrain one of them, it reflects the trait of Sodom. This term was interpreted by most of the Rishonim as "inordinate privatism, that leaves one preoccupied with personal concerns to the neglect of others, or a degree of selfishness so intense that it denies the others at no expense to oneself." (See A. Lichtenstein, "Does Jewish Tradition Recognize an Ethic Independent of Halakhah?" in: M. Fox (ed.), Modern Jewish Ethics, 1975.) As such there are grounds for the nullification of stipulation reflecting those traits. On the other hand, when the stipulation is intended to prevent economic damage or is based on some other relevant consideration, it is not to be disqualified (Ateret Ḥakhamim, Hashmatot, Resp.Ḥm, no. 21; Resp. Imrei Yosher, vol. 1, no. 169).
There is extensive evidence in the responsa literature of attempts to restrict infringement upon the freedom of occupation by narrowly interpreting laws and communal enactments that infringe upon that freedom. Echoes of this tendency are found already in the tannaitic literature. Thus, for example, the command regarding a Hebrew *slave: "And he shall remain his slave for life (le'olam, lit. 'forever'" Exod 21:6), was not interpreted in accordance with the plain sense of the text. Since the verse limits the slave's freedom and deprives him of the possibility of emancipation and choosing where to work, the Sages interpreted the term le-olam, not as "for life," but "until the jubilee" (i.e., until the next jubilee year) (Mekhilta, Mishpatim, sec. 2, ed. Horowitz-Rabin, p. 254; Kiddushin 21b; Josephus Flavius, Antiquities of the Jews, 4, 8:28; and see Elon, Jewish Law, vol. 3, p. 1031). In another case, a stipulation limiting freedom of occupation was interpreted narrowly (R. Abraham of Botosani, Resp. Ḥesed le-Avraham, second series, yd, no. 7). Another case in which one may void or restrict a stipulation that infringes upon freedom of occupation is when it infringes upon a public interest, leading to reduced competition and inflated prices (Naḥmanides, bb 9a; Resp. Maharsham, vol. 2, no. 22).
the right of property
The right of property is anchored in various constitutions, its purpose being the protection of a person's property. The Basic Law of Israel states that this value must be interpreted in accordance with "the values of the State of Israel as a Jewish and democratic state" (secs. 1a, 3 of Basic Law: Human Dignity and Freedom).
As with regard to other rights (see above) Jewish Law defines this not as a right, but as an obligation: an obligation is incumbent upon the individual and upon society not to violate the property or proprietary rights of another person. The most striking command on this matter already appears in the Ten Commandments, "You shall not steal" (Exod. 19:13) (see *Theft), alongside of which there are dozens of other rules and commandments, e.g., the prohibition of theft applying to all of mankind (see *Noachide Laws), the prohibition of unlawful encroachment (see *Hassagat Gevul), and many others. Theft and robbery that violate the property rights of an individual are severely forbidden even when the offender intends to restore the property to its lawful owner (Maim., Yad, Genevah 1:2; see also *Theft and Robbery).
Based on the obligation to protect the property of another person, Jewish Law set down an important principle, according to which, in certain situations, even public interest may be set aside by the property rights of an individual. This principle is already anchored in the Talmud, which asks the rhetorical question, "Is the community a band of robbers?" and forbids the community to encroach upon the property of an individual in order to build a road (bb 100a).
Like other human rights, the right of possession is not absolute. In certain situations, permission is granted to violate the property of an individual in punishment for an offense that he had committed, for which purpose it was stated "property declared ownerless by the court is ownerless" (Git. 59b; Git. 36b; tj Pe'ah 5:1; and see *Hefker). It was similarly established that the king is vested with the power to violate the property of individuals and to expropriate fields and their produce for the needs of his kingdom. This authority is based on the "king's law" found in Scripture (1 Sam. 8:11), echoes of which are heard in the story of Naboth and King Ahab (i Kings 21). It is similarly established in the Mishnah that a king may "breach a fence" for the purpose of road-building, even when such action violates the property rights of an individual, and even to build "the king's road that has no measure" (M. Sanh. 2:4). The medieval halakhic authorities disagreed about the scope of this authority. Some, such as Rashi, greatly expanded it, explaining that the king is vested with this authority even in times of peace, and that he may violate the property rights of an individual even for the purpose of his own convenience (e.g., to provide himself with a shorter path to his fields; Rashi, at Yev. 76b). Other commentators severely restricted this authority, limiting it to "an appropriate purpose," where the king has no alternative, and only as "an emergency measure." In addition, an obligation was placed upon the king to compensate the individual for damage caused to his property (Yad Ramah, Sanh. 20b; Maim., Yad, Melakhim 4:6).
Regarding the expropriation of private property for public purposes, an obligation was imposed upon the ruling authority (the king, the community) to compensate the title-holder with money or alternative property (see i Kings 21:2). Similarly, the tendency was to limit the cases in which private property may be expropriated (Tosafot, Sanh. 20b, s.v melekh). These principles served as the basis for the attempts made by later generations of Sages to restrict the authority to violate the property rights of an individual by way of communal enactments or arguments of public interest (Resp. Ramaz, no. 37). To illustrate this idea, mention was made of the purchase of the cave of Machpelah by the patriarch Abraham, who paid for the property in full despite the promise that he would inherit the entire land, and the purchase of the Temple Mount by King David from Ornan the Jebusite for the purpose of building the Temple.
In Israeli courts
The principles of Jewish Law forbidding the violation of the property rights of an individual served as guidelines for various laws and judicial rulings in Israel. Thus, emphasis was placed on the obligation falling upon the public authority to compensate the owner of property expropriated for public purposes. The courts interpreted the expropriatory power of the public authority and, based upon the principles of Jewish Law, the courts obligated the public authority to compensate the owners for property expropriated for public purposes. In one case, the Supreme Court ruled that, if the public purpose that served as the basis for the expropriation ceased to exist, the expropriation is liable to be nullified. Justice Cheshin based his ruling, among other things, upon the scriptural account relating to Naboth and the talmudic principle, according to which "the community is not a band of robbers" (hc 96/2390, Kerasik et al v. the State of Israel, pd 55(2) 644. See also ca 119/01 Akunas et al v. the State of Israel, (unpublished) (Justice M. Naor) aa Tel Aviv-Yafo) 1146/02 Eitan et al v. National Planning and Building Board (unpublished) (Justice S. Dotan)). In another case, the Supreme Court, per Justice E. Rubinstein, cited sources of Jewish Law prohibiting the violation of an individual's property rights through expropriation, when it is possible to reduce the violation, whether by desisting from such expropriation, or by offering fitting compensation to that individual (aa 0989/04 Local Planning and Building Committee of Petah Tikvah et al v. N.M. Zitman and Sons, Inc. (unpublished)).
As in the case with respect to other rights, so too regarding social rights, Jewish Law speaks of social obligations, rather than social rights. Thus, Jewish Law obligates almsgiving in order to help another person – every person – to live in dignity; it similarly imposes an obligation upon the individual and upon society to provide children with an education. Jewish Law also recognizes the workers' right to strike in certain situations, though it places greater restrictions on that right than are found in modern law (see *Labor Law). Similarly, Jewish law recognizes a person's right to education, to basic health care (see *Human Dignity and Freedom), to quality of life, to live in dignity, to strike.
Balancing the Various Rights
One of the most important principles regarding human rights is that all of the various rights are relative, rather than absolute, and that every right must be balanced against other rights and values. Thus, for example, sec. 13 of the Secret Monitoring Law states that, while evidence attained through secret monitoring is generally inadmissible in court owing to the infringement upon privacy that is involved, in exceptional cases, for example, "in a criminal proceeding regarding a serious felony," the court is authorized to rule that the evidence is admissible after having been persuaded, for the special reasons that it spells out, that in the circumstances in question, the need to arrive at a clarification of the truth outweighs the need to protect privacy.
This approach of balancing among the various values is firmly rooted in the world of Jewish Law. Thus, despite the extreme caution that Jewish Law takes regarding a person's right to privacy, this is set aside by the right to protect the health and welfare of the community. For that reason, a physician is permitted to publicly disclose that a certain person is suffering from an infectious illness, when the disease is liable to spread and endanger the health of the community. Similarly, despite a person's right to life and the wholeness of his body, Jewish Law did not refrain from administering corporal punishment and judicial execution. A person's right of property is also set aside by the various monetary penalties that may be imposed upon him (see *Punishment, *Capital Punishment), Similarly, a person's right to freedom of movement does not preclude the use of arrest or imprisonment, provided that these steps are taken for appropriate cause and not in excess of what is necessary (see *Imprisonment). So, too, the right of property may be set aside by the right of the public authority, in certain cases, to expropriate private property for purposes of the public needs.
On the basic level, this balance of interests is evident in all legal systems, but the method of balancing and its operation in specific cases differs from one system to the next. Inasmuch as it is a religious legal system, Jewish Law establishes a balance different from that found in modern legal systems. Thus, for example, in contrast to American and Israeli constitutional law, Jewish law assigns priority to the value of life over that of personal autonomy (Shefer ruling; see also *Medicine and Law; Euthanasia), and in certain cases prefers a person's right to a good name and his right to privacy over the public's right to know and freedom of expression.
[Aviad Hacohen (2nd ed.)]
The Right to Privacy
protection of privacy under israeli law
The right to privacy is one of the most important human rights (see: Cr.A. 1302/92 The State of Israel v. Nahmias, 49(3) pd 309, 353; Cr.M. 2145/92 The State of Israel v. Viktor Guetta, 46(5) pd 704; S.D. Warren & L.D. Brandeis, "The Right to Privacy," 4 Harv. L. Rev. (1890) p. 193) a right that extends to "those matters of the individual that, according to social consensus, the individual is entitled to keep to himself without someone else giving them public expression without his consent" (Introduction to the draft bill for the Protection of Privacy Law, 5740 – 1980, Sefer ha-Ḥukkim 1453, p. 206). The constitutional right of a person to privacy is derived from his dignity as a human being and from the nature of the State of Israel as a Jewish and democratic state. This right is also an integral part of international law and is anchored in several major international treaties (see, e.g., section 12 of the Universal Declaration of Human Rights from 1948; section 17 of the International Covenant on Civil and Political Rights; section 8(1) of the European Convention on Human Rights from 1950). The right to privacy embodies the individual's right not to have his private life disturbed by others, and includes the individual's interest to keep a degree of anonymity and intimacy for himself, such that his private affairs will be protected from another's view. The scope of the right to privacy includes the individual's right to manage his life within his own home without interference. Over the years, the right to privacy has become rooted in the decisions of the Supreme Court of the State of Israel as a basic legal right and has a considerable, although not absolute, degree of force. Its status as a supra-legal constitutional right was established in the Basic Law: Human Dignity and Freedom (Sefer ha-Ḥukkim 5792 – 1992, 150), Section 7 of which provides as follows:
7. (a) All persons have the right to privacy and to intimacy.
(b) There shall be no entry into the private premises of a person who has not consented thereto.
(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.
(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.
The court accorded quasi-constitutional status to the right to privacy even before it was anchored in the Basic Law: Human Dignity and Freedom. Because of its standing as a basic legal right, the governmental authorities ordered that it be respected, and it may not be infringed without express authority from the legislature; however, after being entrenched in the Basic Law, it received additional weight. The right to privacy already received express legal anchoring prior to the enactment of the Basic Law. The technological developments that facilitate invasion of the individual's domain with relative ease while concealing the fact of the invasion, and the apprehension regarding the transformation of personal affairs into public property and the harm that will be caused thereby to the individual's quality of life, to his personal security and to his autonomy, led the legislature to adopt the Secret Monitoring Law 5739 – 1979 (Sefer ha-Ḥukkim 5739 – 1979, 118) and the Protection of Privacy Law, 5740 – 1980. Both laws share largely similar goals and means for achieving them: defining actions that constitute an unauthorized intrusion into the private domain as criminal offenses; establishing rules defining those limited circumstances under which infringement of privacy will be permitted, whether in advance or retroactively; and determining that material gathered as a result of an invasion of privacy is inadmissible as evidence in legal proceedings. The exclusionary rule in the Secret Monitoring law may only be deviated from under certain, limited statutory conditions, in those cases where the goal is the thwarting of a serious felony or the promotion of the direct goal of the law – the eradication of secret monitoring by the prosecution of those who engage in it. The Protection of Privacy Law allows the deviation from the exclusionary rule at the request of the injured party or at the discretion of the court.
Protection of Privacy in Jewish Law
Based on the consecutive placement of two verses in the Torah, the Midrash derives the teaching that "…a person shall not enter another's home unless [the other] says to him: 'enter'" (Midrash Lekaḥ Tov (Pesikta Zutra), Vayikra, 1). The Talmud (Pesaḥim 112a) relates that Rabbi Akiva instructed his son Rabbi Joshua as follows: "My son… do not enter your own home suddenly, and all the more so another's home." In other words, there is a moral obligation to safeguard privacy, not only with respect to another person and his domain, but even in one's own home shared with one's own family. This respect of privacy became a binding norm during the period of the Talmud. Regulations were promulgated and prohibitions established to protect a person from the invasion of his privacy by others, with the goal of creating an orderly society in which people would be able to live together (see in detail, Menachem Elon, Human Dignity and Freedom in the Execution of Court Decisions: The State of Israel's Values as a Jewish and Democratic State (2000), p. 32 n. 88). We will present examples below of protection of privacy in Jewish Law, which served as a basis for the decisions of the Israel Supreme Court in general, and of the Deputy President, Justice Menachem Elon, in particular.
the lack of supervision of the individual within his own domain
According to Jewish Law, a person's private deeds and thoughts were not subject to supervision. This area was left to the accounting a person was required to render to his Maker – and to Him alone. In support of this approach, Rabbi Emanuel Rackman cites the words of the Talmud (Ket. 72a): "Rabbi Hinena b. Kahane said, in the name of Samuel: Whence do we learn that a niddah [a menstruant woman, who is ritually impure] counts for herself? It is said: 'And she shall count for her' – 'for herself.'" According to the halakhah, both men and women may become impure as a result of certain bodily secretions, and are subsequently required to immerse themselves in water; but before doing so they must count seven "clean days." In noting this obligation, the Torah states "and he shall count for himself " for a man and "and she shall count for herself " for a woman: that is, the counting is personal. There is no supervision or examination of this process to ensure that they do not cheat and thereby expedite the process of "purification." Jewish Law prefers trusting the individual over intrusion into his privacy. Refraining from supervision in these cases does not only stem from pragmatic concerns, such as the difficulties of supervising and absence of resources; the rabbinical courts could have encouraged informants or used inducements to entrap those who did not act as required. Jewish Law recognized such tactics, but only permitted them in one situation: regarding a person who instigated and led others astray to perform idolatry. What characterizes this exceptional situation is the threat to the integrity of Jewish society inextricably entwined in this offense. The inducement is designed, not to reveal the opinions of the criminal for their own sake, but rather to prevent him from leading others astray to follow his path and thereby damage the character of Jewish society (see below).
The duty to protect the individual's rights to dignity, a good name and privacy, are expressed in the legal realm in the laws of slander and gossip. Rabbi S.R. Hirsch (Horeb (1965), 253–59) explains the rationale and principles underlying of these laws. He claims that the prohibitions against slander and gossip are meant to protect the image that a person creates for himself in society, an image that is important for his happiness and self-fulfillment. According to Rabbi Hirsch, a society in which there is no protection of the values of human dignity and privacy is one that will bring upon itself "an eternal destruction of human life, and a bane of justice and integrity, happiness and peace" (see above on the right to a good name). In a case involving slander, Jewish Law gives the court authority to order, in addition to the punishment, destruction of the slanderous material or a prohibition on its distribution (see Resp. Devar Moshe, Pt, 2, no. 91, and see at length *Slander).
gossip and the ban of rabbenu gershom
One who reveals another's secret has committed an offense comparable to one who bears tales (Yoma, 4b). The prohibition on revealing secrets gave rise to the rule that "there is a prohibition on asking and searching in the private affairs of another" (Rabbi Jacob Ḥagiz, Resp. Halakhot Ketannot, vol. i. no. 276). An important regulation based on this principle was enacted by Rabbenu Gershom, Me'or ha-Golah, cited in the responsa of Maharam of Rottenburg as follows: "Seeing a letter that one has sent to another without his knowledge is forbidden, and if he threw it away it is permitted" (Takkanot Rabbenu Gershom Me'or ha-Golah, as quoted in Resp. Maharam b. Rabbi Baruch, printed in Prague, at the end). A number of reasons are given for this regulation in the responsa literature (See: U. Ḥagiz, Sefer Halakhot Ketannot, pt. i, no. 276; Rabbi Ḥayyim Palaggi Resp. Ḥikekei Lev, yd. Pt. 1. no. 49; Maharhash, Torat Ḥayyim, Pt. 3, no. 47). One reason is rooted in the overarching principles applying to all interpersonal behavior: "You should love your neighbor as yourself " and "That which is hateful to you, do not do to your fellow man." The second factor involved is the transgression of the rule "do not go bearing tales among your people" – in other words, there is a prohibition on searching among the hidden things of another. The third is because of theft, insofar as a person owns his personal information and another does not have the right to take it contrary to his wishes and without his knowledge. Regarding the sanction for this prohibition, it is written that "because there has been an increase among those who secretly open letters belonging to others, the court should establish a boundary and punish those who transgress as it sees fit" (Maharhash, Torat Ḥayyim, Pt. 3, no. 47, and Resp. Beit David, yd, no. 158). On this basis, Rabbi Sherman, a dayyan of the Rabbinical Court of Appeals of the State of Israel concluded that "it is clear that there is a halakhic prohibition on secret monitoring and a boundary must be established and those who transgress should be punished."
means of collecting a debt
The fashioning of means for debt collection in Judaism was influenced by the right to privacy (see in detail *Imprisonment for Debt; *Execution, Civil; and the opinion of Justice M. Elon in hc 5304/92 Peraḥ 1992 Siu'aḥ le-Nifga'ei Ḥukim ve-Takkanot le-Ma'an Yisrael Aḥeret – Amuta v. The Minister of Justice, 47(4) pd 715, pp. 734–43; M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkhei ha-Hoẓa'ah le-Po'al (2000). Regarding the relationship between creditor and debtor, Jewish Law establishes a clear and unambiguous position (Deut. 24:10–11): "When you lend your brother anything, you shall not go into his house to fetch his pledge. You shall stand outside, and the man to whom you lent shall bring out the pledge to you." These verses embody the halakhic ideal – honoring the fundamental right of the debtor to privacy and personal freedom. The creditor's right to receive his money and to take the law into his own hands was limited, in that he was prohibited from entering the debtor's house. However, this arrangement did not stand the test of reality in the face of the socio-economic necessity to guarantee the payment of debts. Jewish Law takes the stand that a person's privacy in his own home is a right which deserves to be defended by law; however, it may not be exploited to impinge upon the rights of others and to obstruct the execution of the law. Thus, from the talmudic era, there is a balancing of the biblical injunctions while preserving privacy by means of transferring the authority and discretion to the judicial authority, so that only an emissary of the court may impinge upon an individual's privacy.
The Babylonian Talmud praises the people of Israel for protecting and guarding the privacy of the individual (Baba Batra 60a; for more detail on the subject see under "Hezek Re'iyah," in: Encylopedia Talmudit, 8:659): "Rabbi Johanan said …'And Bilam lifted up his eyes, and he saw Israel abiding according to their tribes' (Num. 24:2). What did he see? He saw that the openings of their tents were not facing one another. He said: These [people] are worthy of having the Shekhinah dwell among them." This custom constituted the moral basis for enactment of the regulation regarding protection from hezek re'iyah ("visual trespass"; see *Nuisance) that constitutes an important element in the protection of personal privacy in Jewish Law. According to the Torah law, a person is only liable for compensation to another for damage if he performed a positive action. However, the Sages included within the prohibition of causing injury even that which stems from impingement on one's privacy –"visual trespass"; i.e., the damage caused by one person looking to another person's property. This damage is derived both from common sense and from the tradition, and was renewed by way of the regulation of the Sages. The broadening of the protection of privacy beyond the physical invasion of another's domain to include a prohibition even against looking at it from a distance, even from the property of the one looking, stems from the rule that "you shall do the upright and the good." Various reasons are given in the literature of the rishonim for the "visual trespass"; among others, there were those who viewed it as a kind of "giri dilei" (lit: throwing arrows). This concept relates to a situation in which a person commits an act on his own property (throwing arrows), as a result of which harm is caused to someone in a different place. From this, some of the rishonim argued that visual trespass is damage caused directly from one person observing another. A person is not interested in being exposed to the gaze of another while on his own property, nor in his personal details being known to others. The infringement of a person's privacy occurs, not only when his personal space is physically violated, but also when he is observed on his own property from outside. Moreover, the principle of the "visual trespass" also includes the obligation to avoid the very possibility of such observation which infringes upon the other's right to privacy, inasmuch as the very existence of such a possibility disturbs a person from acting in his home and in the surrounding property as he desires. Hence, one whose privacy has been infringed by the fact that his neighbor has opened a window facing his home and property is entitled, not only to receive an injunction against his neighbor prohibiting him from standing at his window and looking into his property, but the injured party is also entitled to demand that the situation be returned to its original state, in such a way that he will not suffer further injury. (See *Nuisance)
infringement of privacy in marital relations
Jewish law preserves the autonomy and privacy of each spouse in a marital relationship. This is true in the personal as well as in the monetary sphere. Jewish Law recognizes that the wife is entitled to respect, privacy and to autonomy over her body. These rights of the wife are at the basis of the halakhah's prohibition of coerced cohabitation. The Talmud (Eruvin 100b) states: "Rami bar Ḥama said in the name of Rav Assi: "A man may not force his wife to perform a mitzvah…" This opinion is the authoritative position, accepted by all Talmudic authorities as well as by the later halakhic codifiers. From this we learn that, despite the fact that a wife is obligated in the marriage agreement to cohabit with her husband, and despite the fact that non-fulfillment of the obligation may constitute grounds for the husband to breach the agreement and to declare the wife a moredet (rebellious wife), none of this serves as license for the husband to perform an act that infringes upon her body, her dignity, her freedom, and her privacy. There is no doubt that married couples are expected to behave openly with one another and to live together with love, harmony and fellowship, but the obligation of openness in the couple's relationship does not allow one party to infringe upon the privacy of the other, even when the obligation of fellowship is breached (see: N. Rakover, "Yaḥasei Ishut bi-Kefiyyah bein Baal le-Ishto," in: Shenaton Ha-Mishpat ha-Ivri, 6–7 (1979–1980), 295).
The status of the obligation "and they will not hide them …from one another," contained in the prenuptial agreement (tenaim) (Naḥalat Shiva, no. 10) is a point of disagreement among the halakhic decisors. According to Rabbi Joseph Colon (Resp. Maharik no. 57), this portion of the prenuptial agreement has a normative binding status. On the other hand, Rabbi Shlomo Kluger (Resp. Tuv Ta'am ve-Da'at (3rd ed.), No. 181) is of the opinion that this portion of the agreement does not have the status of a normative binding provision, but is rather considered as part of the opening comments. Rabbi Dikhovsky of the Rabbinical Court of Appeals of the State of Israel (S. Dikhovsky, "Ha'azanot Seter," in: Teḥumin, 11 (1990), 299ff., at 303) expands the applicability of this condition to personal obligations and not just to monetary obligations.
searching a person's body
The question of conducting a search on a person's body arose in Jewish Law in the context of one who entered the Temple chambers to contribute his shekalim. According to one opinion (Tosef. Shekalim 2:2), it was customary to search the body and clothing of one entering the chamber, in order to preempt a claim, in the event that money was found in his possession on his way out, that he had brought his own money with him. According to another opinion (M. Shekalim 3:2), one who enters should not be humiliated by a search of his clothing and his body, and it is sufficient that he take care not to enter the chamber with clothing or possessions that would be likely to cast suspicion upon him. The Tosefta, supra, explains this difference of opinion as follows: The opinion that no search of a person's clothing should be made is the opinion of Rabbi Akiva, who states: "'And you shall do that which is right and good in the sight of the Lord' (Deut. 6:18) – good in the eyes of Heaven and right in the eyes of man." In other words, indeed a person has to do what is good in the sight of the Lord and to be clean in the eyes of Israel as well, that is, not to bring suspicion upon himself, but he must also take care to do what is right in the sight of man, and therefore not to be humiliated by a search, because conducting a search on a person's body is not right in the sight of man. (See M. Elon, Ha-Mishpat ha-Ivri (19883), pp. 512–15; Jewish Law, (1994), 624–28, and the notations there.) On the other hand, Rabbi Ishmael follows the first opinion, that "doing what is right refers to what is right in the sight of the Heavens" (Tosefta, supra) – in other words, that both the good and the right refer to the good and the right in the sight of Heaven, and what is good and right in the sight of Heaven will be so in any event in the sight of man – and therefore a search should be conducted in order to ascertain that he did not embezzle money belonging to the Chamber. The law was decided according to Rabbi Akiva, that a search not be conducted (Yad., Shekalim, 2. 10; and see Ha-Mishpat ha-Ivri, supra, 512–13; Jewish Law, 624–25).
The preservation of human dignity and the prohibition against humiliating people is applicable, not only to innocent members of society, but even to those suspected of having committed a crime. Where the Jerusalem Talmud (Sanhedrin 7:8) states that a suspicion based on an unsubstantiated charge that a certain person killed someone is sufficient to arrest the suspect until the charges are clarified, Rabbi Yose questions that statement: Do they apprehend someone in the marketplace and humiliate him? Rather, only where there is prima facie evidence regarding the commission of a crime by the suspect may he be placed in detention until his witnesses come (see the decision of Justice Menachem Elon in Cr.M. 71/78, The State of Israel v. Rivka Abukasis, 32(2) pd 240, pp. 248–49). The arrest of a person in the marketplace is a humiliation, and it is only permitted in the event that there is a suspicion regarding a serious crime, such as murder, in which case public safety is endangered if the suspect continues to walks about freely.
Jewish law also dealt with searches on and in a person's body. According to the teachings of the Sages, a person's dress is regarded as his dignity and his privacy: "For a person's dignity is his clothing" (Exodus Rabbah 18. 5).
Regarding Rabbi Johanan it was told that he called his clothing "my dignity," because "they dignify their owner" (Shabbat 113a, and Rashi ad loc; Bava Kamma 91b; Sanhedrin 94a). In addition, walking about naked is considered impure and an abomination: "There is nothing more impure and abominable to God than one who walks about naked in the marketplace" (Yevamot 63b). Against this background, Jewish Law specifically discusses the injury to human dignity caused by a person removing his clothes in public.
The Torah states: "You shall not wear a garment of diverse kinds, of wool and linen together" (Deut. 22:11; Yad., Kila'im, 10:1). In the Talmud (Berakhot 19b), the question is asked whether one who discovers mixed wool and linen fabric (sha'atnez) in his clothes while walking in the marketplace is required to remove the garment immediately so as not to transgress this prohibition, or only after he arrives home, because disrobing in the marketplace harms his dignity and humiliates him. In this context, the principle is cited: "Great is human dignity for it supersedes a prohibition written in the Torah." According to this principle, one may postpone removing the garment until arriving home. The Babylonian Talmud rules that a distinction must be made between the case in which the garment is of the kind of mixture that is forbidden according to the Torah and that forbidden by rabbinic law alone. In the latter case, the person need not remove the garment in the marketplace, for his dignity takes precedence over a transgression which is not of biblical force (d'oraitah); but in the case of sha'atnez that is forbidden according to the Torah, it is preferable not to transgress the prohibition, based on another principle: "There is no wisdom or understanding or counsel against the Lord" (Prov. 21:30). According to the passage in the Jerusalem Talmud (Kila'im 9:1), the principle of human dignity even overrides a negative commandment of de-oraita force, and not only one of rabbinic force (de-rabbanan). The simple reading of this passage is that there is a disagreement between the Jerusalem Talmud and the Babylonian Talmud, as set forth in the commentary of R. Elijah of London, according to which one of the amoraim is of the opinion that human dignity supersedes even a prohibition of the Torah (Perush Rabbenu Eliyahu mi-Londrish, ed. M.J.L. Zaks (1956), p. 2). A brilliant explication of this is given in the rulings of the Rosh, where it is stated: "Regarding kilaim (mixtures) that are prohibited by the Torah – clearly if one finds kilaim in his clothes, there is no wisdom or understanding against the Lord and he must remove the garment even in the marketplace. But if a person sees kilaim in another's garment, and the one wearing it is unaware, he should not be told in the marketplace until he arrives at his home, and he should be silent for the sake of his dignity and not require him [immediately] to cast off an inadvertent transgression."
planting concealed witnesses – entrapment
In the view of the halakhah, enticing others to idolatry is an extremely serious offense. One who entices others to alien worship (Deut. 13:7–12) subverts the character of the Jewish society. His deed is particularly dangerous, inasmuch as it is done secretly and he entices his friends who are loyal to him and will not be quick to turn him over to the authorities or testify against him in court. Therefore, the rules of procedure regarding one who entices others to idolatry are more lenient in several aspects, one of which is relevant for our purposes. Ordinarily, it is prohibited to conceal witnesses or to use detective devices with the goal of following one who commits an offense and to gather evidence regarding such commission; however, this prohibition does not apply regarding one suspected of enticing others to idolatry. Because the enticer carries out his deeds in the utmost privacy and his offense strikes at the very foundations of the society, the halakhah is forced to use extraordinary means to expose him, by creating an artificial situation in order to trap him. In an article dealing with the subject of secret monitoring, Rabbis Dikhovsky and Dasberg disagree as to whether such concealment of witnesses is permitted regarding other offenses as well (see Dikhovsky, "Ha'azanat Seter," in: Teḥumin 11 (1990), 299, and Dasberg's response at the end of the article). Relying on the Rambam, Rabbi Dikhovsky argues that "…the difference between an enticer and others who commit capital crimes is only that with regard to an enticer there is an obligation (mitzvah) to entrap him, whereas with regard to others who have committed capital crimes, it is permitted to do so." Rabbi Dasberg, on the other hand, argues that "such entrapment is only permitted with regard to an enticer, and only when he cannot be dissuaded from commission of the offense by warnings and by opening a door to repentance. However, concealment of witnesses is forbidden with regard to any other offense, because the one who puts the entrapment in place violates the injunction 'do not place an obstacle before the blind' and disregards the mitzvah of reproaching another for his waywardness." The deputy president of the Supreme Court, Justice Menachem Elon, is also of the opinion that it is permissible to carry out entrapment in other exceptional cases, and he argues that under special circumstances secret monitoring is a mitzvah, such as in order to create evidence in a case of serious crime (incitement and enticement), and that it is permitted in order to create evidence regarding any criminal activity whatsoever (see Rabbi Joseph Babad, Minḥat Ḥinukh, on the Sefer ha-Ḥinukh §462). Justice Elon also relies on the halakhah that permits opening another person's letter where there is basis for suspecting that the one who wrote the letter intends to defraud the addressee of his money, and that the situation may be clarified by opening and reading the letter (see Rabbi Ḥayyim Palaggi, Resp. Ḥikekei Lev, Pt. i, yd 49; Rabbi Joseph Colon, Resp. Maharik, no.110; Haggahot Rema to yd 228.33; cf. Justice Menachem Elon's opinion in fh 9/83 Military Appeals Tribunal v. Vaknin, 42(3) pd 837, para. 9.).
protection of privacy in decisions of the israel supreme court
The Israeli Supreme Court dealt with the question of privacy in a number of decisions. These decisions were based inter alia on sources in Jewish Law. One of the questions discussed in the Afangar case (Cr.A. 360/80, The State of Israel v. Ya'akov Afangar, 35(1) pd 228) was the question of the criminal liability of one who was enticed to commit a crime. Justice Elon based the rule set forth in Israeli case law, according to which one who was enticed is not thereby absolved of his criminal liability, on the above-cited sources of Jewish Law. The Vaknin case (fh 9/83, Military Court of Appeals v. Vaknin, 42 (3) pd 837) involved an incident in which military policemen forced a soldier to drink salt water against his will in order to determine whether he had swallowed a bag containing illegal drugs. The Court again reiterated that the Israeli law did not adopt the American doctrine of "fruit of the poisoned tree" even after the enactment of the Protection of Privacy Law and the Covert Listening Law. Considerations of educating those in positions of authority and protection of a defendant's dignity and his freedom are not sufficient to justify ignoring objective facts when the court must make a ruling regarding the legal truth. In that decision, Justice Elon elaborated on the position of Jewish Law regarding the question of the protection of privacy. He issued a call to the judges that "the material found in Jewish Law regarding protection of privacy, as well as many additional sources, should be used as a source to resolve various dilemmas regarding the protection of privacy." In another case (Cr.A. 2145/92 The State of Israel v. Victor Goetta, 46(5) pd 704), the police conducted a search on Victor Goetta, whom they suspected of possessing illegal drugs. It was alleged that the police stripped him and conducted a search of his body parts in order to ascertain if he was concealing drugs in his private parts. In that case, Justice Elon wrote a leading decision regarding body searches, based on sources in Jewish Law. The rules set forth there distinguish between permitted searches on the visible parts of a person's body, as opposed to a search in his internal organs, which is forbidden unless there is an explicit legal provision that permits it. In addition, even a permitted search must be conducted in such a manner that the person's dignity is respected, so that the image of God within him not be debased and humiliated.
The Attitude to Non-Jews
In the Naiman case (ea 3, 2/84, Naiman v. Central Elections Committee, Chairman; Avneri v. Central Elections Committee, Chairman, 39 (2) pd 225), the deputy president of the Israeli Supreme Court, Justice Menachem Elon, stated (at p. 298) that:
One of the fundamental principles in the world of Judaism is the idea of man's creation in the Divine image (Gen 1:27). This is how the Torah begins, and from it the halakhah derives basic principles regarding the value of the human being – every human as such – and the right of every person to equal and loving treatment. "He [R. Akiva] would say: Beloved is man, for he was created in the image [of God]; it was an act of greater love that it was made known to him that he was created in the image [of God] in that it is stated 'In His image did God make man' [Gen. 9:6]" (M. Avot 3:18).
There is a highly instructive dispute between two of the leading tannaim regarding the essence of the most fundamental principle in the realm of man's relation to his fellow man: "'You shall love your neighbor as yourself ' [Lev 19:18]. Rabbi Akiva said: 'This is a fundamental rule of the Torah.' Ben Azzai said: 'This is the book of the generations of man [in the day that God created him in his image]' [Gen. 5:6]. This is even more fundamental than the former" (Sifra, Kedoshim 4:10). According to R. Akiva, the highest value in inter-personal relations is the love of man and of one's fellow human being; while according to Ben Azzai, the greatest value is human equality, stemming from the creation of every person in the image of God.
Justice Elon continues:
The two values taken together – human equality and love of humanity – became as one in the Hebrew nation, and together they constitute a fundamental principle of Judaism, throughout its generations and eras. The fundamental principle "you shall love your neighbor as yourself " is not only a matter of subjective feeling, an abstract love with no practical requirements, but a way of life in the practical world. It is this principle that is formulated in Hillel's words: "That which is hateful to you, do not do to your fellow man" (Shab. 31a).
Based on this approach, Rabbi Abraham Yitzhak Hacohen Kook wrote that,
Love of humanity must be alive in one's heart and soul – love for each individual separately, and love for all nations [together with], desire for their advancement for their spiritual and material progress … An inner love from the depths of one's heart and soul, [a longing] to be beneficient to all nations to add to their material wealth, and increase their happiness. (Middot ha-Re'iyyah, Ahavah, sec. 5).
These basic and fundamental world-views also determined the attitude of Jewish sources to the national minority living under Jewish rule. A whole series of basic commandments of Judaism are explained in the Torah in terms of the historical memory of the people and its suffering as a minority under the rule of others: "for you were strangers in the land of Egypt" (Exod. 23:9; Lev. 19:30; 22:20; 23:9; and passim). Moreover: "You shall not abhor an Egyptian, for you were a stranger in his land" (Deut. 23:8). Racism, which has to this very day claimed so many victims over the course of human history, is unknown in the world of Judaism, and totally rejected thereby.
The Book of Leviticus (19:33–34) states, "and when a stranger dwells among you in your land, you shall not oppress him. Like a sojourner among you shall be the stranger who lives with you, and you shall love him like yourself, for you were strangers in the land of Egypt; I am the Lord your God." In the Book of Exodus (22:20), the prohibition is couched in somewhat different language: "You shall not wrong or oppress a stranger, for you were strangers in the land of Egypt." The prohibition against oppressing the stranger is addressed both to the individual in his relations with others and to governmental authorities and the general public. Rabbi Samson Raphael Hirsch saw the use of the singular as addressed to the state as a body, while those verses phrased in the plural were addressed "to the nation as a whole, also as an aggregate of individuals" (see Rabbi S.R. Hirsch, Commentary to the Pentateuch, on Exod. 22:20). The Torah emphasizes the prohibition against oppressing the stranger in order to express the value of equality in society, specifically with regard to members of other religions, and to warn man repeatedly not to surrender to the temptation of exploiting the weakness of those lacking in power or influence, as expressed well by Hirsch in his Commentary (ibid., from the English translation of I. Levy (Gates-head, 1973), vol ii, p. 373):
It is not race, not descent, not birth or country or property, altogether nothing external or due to chance, but simply and purely the inner spiritual and moral worth of a human being, which gives him all the rights of a man and of a citizen. This basic principle is further ensured against neglect by the additional motive, [that you were strangers in the land of Egypt] …Your whole misfortune in Egypt was that you were gerim, "foreigners," "aliens" there; as such, according to the view of other nations, you had no right to be there, had no claims to rights of settlement, home, or property. Accordingly, you had no rights in appeal against unfair or unjust treatment. As aliens you were without any rights in Egypt, out of that grew all your.. slavery and wretchedness. Therefore beware, so runs the warning, from making rights in your own State conditional on anything other than on that simple humanity which every human being as such bears within him. With any limitation of these human rights the gate is opened to the whole horror of Egyptian mishandling of human beings.
Most of the halakhic sources interpreted the oppression of the stranger as referring specifically to the proselyte who was attached to the people of Israel in every respect – i.e., the ger tzedek, the righteous proselyte. Yet this interpretation presents a number of difficulties. The first of these is that the Torah prohibits oppressing any person from Israel, "You shall not oppress each man his fellow" (Deut. 25:124), so that the prohibition against the oppression of the proselyte seems superfluous, as they are in any event included within the totality of Israel. The second difficulty relates to the reason given for the prohibition, whether in Exodus, Leviticus, or Deuteronomy: "for you were strangers in the land of Egypt." The Israelites were certainly not "righteous proselytes" in Egypt, for they did not go there to settle permanently, but to reside their temporarily until the famine would pass, as confirmed by the fact that they did not assimilate within the Egyptian people. Hence, there were those who interpret the Torah as prohibiting the oppression of the stranger who lives among us, even if he did not accept Torah and mitzvot. And indeed, it was thus that Ibn Ezra interpreted it (in his shorter commentary, to Exod. 22:20): "And the phrase 'you shall not oppress the stranger' refers to the resident stranger, because there is no one to help him from his own family, and any of the residents can deprive him of his wealth or of his home, and also bring pressure upon him by testimony, as Scripture says, 'you shall not oppress your neighbor'" (Exod. 20:12).
Who then are these "resident strangers" (gerei toshav)? Rav Kook thought that the Muslims living in the Land of Israel fall under the rubric of ger toshav (see Resp. Mishpat Kohen, no.58), and Rabbi Isaac Halevi Herzog ruled similarly in his wake, emphasizing that "even though they were not formally accepted before a Jewish court, and even though we do not accept a person as a ger toshav in this era… an entire nation that took upon itself the seven [Noachide] mitzvot, even today, are subject to the rule of ger toshav (Resp. Heikhal Yiẓḥak, eh, Pt i.12). This rule also applies to the Christian Arabs in Israel (see Rabbi I. Herzog, "Minority Rights According to the Halakhah," in: Teḥumin, 2 (1981), 172 (Heb.); on the issue of Christian faith and the seven Noachide commandments, see Rabbi Y. Harlap, "Idolatry through Shituf Among Noachides" (Hebrew), Teḥumin, 19 (1999), 148). Above and beyond the halakhic discussion regarding the status of the resident stranger – the attitude towards non-Jewish minorities and their freedom of religious practice is established by the principle in Jewish law of "ways of peace." As noted by the Talmud (Gittin 61a): "Our Rabbis taught: One provides sustenance to the poor among the non-Jews together with the poor among the Jews, and one visits the sick of the non-Jews together with the sick of Israel, and one buries the dead of non-Jews together with the dead of Israel, because of ways of peace" (see Rabbi Judah Gershuni, "Minorities and Their Rights in the State of Israel in Light of the Halakhah," in: Teḥumin, 2 (1981), 180, 192 (Heb.)). Hence, Jewish law recognizes the option of appointing a non-Jew to public office; this, because, despite the original prohibition against doing so was because of the dominion they might exert over the public. Today, when the power of office derives from the people, it does not present a problem (see Elisha Aviner, "The Status of the Ishmaelites in the State of Israel in Light of the Halakhah," in: Teḥumin, 8 (1987), 337, 358 (Heb.)).
One should note, vis-à-vis the freedom to practice their own religion on the part of the minorities living in the land, that the Hebrew nation does not engage in "missionizing" in order to add members of other peoples to its own ranks (see Micah 4:5; Yad., Melakhim 8:10). This fact expresses, among other things, the tolerance that Judaism affords to members of minority groups to live according to their own tradition and culture. The practice accepted in the ancient world – and in more recent times as well – was that the majority forcibly assimilates members of minority groups into the majority religion of the state – based on the accepted principle that "Cuius Regio Cuius Religio," i.e., he who rules is the master of religion. This practice led to the persecution of minorities to the extent of forcing them to accept the religion of the dominant majority. This practice was absolutely forbidden in the world of halakhah. For that reason, during those periods when Jewry enjoyed power, "the Court did not accept proselytes all the days of David and Solomon. In the days of David – lest they came out of fear; and in the days of Solomon – lest they came because of the kingship and greatness and material good which were then seen in Israel" (Yad, Issurei Bi'ah 13:15). These matters were summarized by Justice Elon in the Naiman case as follows (301–2):
The national minority of a member of another people is defined in the halakhah as having the status of a resident alien (ger toshav), the only requisite demanded of him is to abide by the "Seven Noachide Laws" – the elementary rules of a legal order which the members of all civilized nations are commanded to observe, and which the Sages saw as a kind of universal natural law (Yad, Issurei Bi'ah 14:7 and cf. Melakhim 8:10–11; Sanhedrin 56a; Ramban, Commentary on the Torah to Gen. 34:13; and cf. M. Elon, op cit., 183ff.). The national minority is entitled to all of the civil and political rights of the other inhabitants of the country: "though he be a stranger, or a sojourner; that he may live with thee" (Lev. 25:35). "A ger toshav is to be treated with the same respect and kindness accorded a Jew, for we are commanded to let them live… and since one is obligated to let the ger toshav live – he must be given medical treatment without charge" (Yad, Melakhim 10:12; ibid., Avodat Kokhavim 10:2). And the Sages further said: "One does not settle a ger toshav on the frontier, or in an undesirable dwelling, but in a desirable dwelling in the center of the Land of Israel, where he may practice his trade. As is said, 'He shall dwell in your midst, in a place which he shall choose in one of your gates [settlements] in your midst, wherever he pleases, you must not oppress him' [Deut 23:17]" (Masekhet Gerim 3:4) …Jewish rule and dominion – not in order to rule over the world, nor in order to dominate the Gentiles, but so that Israel will not be subject to any oppressor, but will engage in Torah and wisdom, and the land will be filled of knowledge. In these great words of the leading Sages of Israel are encapsulated the destiny and image of the Hebrew state."
The law does not explicitly mention the prohibition against oppressing the convert (ger), the foreigner or member of a minority group, but he does enjoy special protection under the provisions of a number of laws, such as the regulation that a work contract with a foreign worker must be in a language that is known to him and must include many of the details that are fixed in the law, including the employer's obligation to provide the foreign worker with medical insurance and suitable living accommodations (Section 1c of the Foreign Workers (Illegal Employment and Assuring Suitable Conditions) Law 5751 –1991. For the prohibition against withholding the passport of a foreign worker, see Section 376. of the Penal Law 5737 – 1977, and the remarks of Judge Arad in aa 1459/02, Butcheman v. Best Yizum u-Benyah (unpublished)). It also states that information about available positions in the State service, tenders of public bodies, and criteria for receiving subventions from the government budget must be made available to the Arab public, through their publication in Arabic (see: Amendment 15(b) to the Obligation of Tender Regulations 5753 – 1991, sec 6:1, for the procedure for submitting requests for support from the government budget in public institutions and discussion thereof, as amended in Official Publications (Yalkut Pirsumim) 5760, 3264). Similar rules were introduced in recent years requiring suitable representation in the government service and in the directorates of government companies and public corporations (sec 15a of State Service (Appointments) Law, 5719 – 1959, and Section 18 (a i) of the Government Companies Law, 5735 – 1975).
The issue of oppression of the proselyte in Israeli law was discussed in a ruling, when Shoshanah (Susan) Miller, who had immigrated to Israel from the United States after converting to Judaism within the framework of the Reform Judaism, asked to be registered in the population registry as a Jewess. The Minister of the Interior, following legal consultation, ruled that there was no way of avoiding her request, but that hereon in, in similar cases, there would be a notation in the section for religion and nationality on the identity card: "Jew (converted)." The President of the Supreme Court, Justice Shamgar, ruled that the registration official had no power to add anything to the accepted form of registration in the sections of religion and nationality, and therefore accepted Miller's appeal and ordered that she be registered as a Jew without further addition. Justice Elon added the following to his words: (hc 230/86 Miller v. Interior Minister et al, pd 40(4), pp. 447–48):
In my opinion, this "parenthetical" addition, intended as a completion or "description" in every case of conversion, following the word Jew, also has absolutely no place or source in terms of the halakhah. There is no person concerning whom the Torah warns us so frequently – in 36 separate places – as it does regarding the oppression of the proselyte, whether in speech, in action, or by way of halakhic-legal statements and notations… One does not mention to a proselyte his previous status and deeds, one does not treat lightly the respect due to him…. One of the recent halakhic sages said the following: "Every person whose behavior towards the proselyte differs from his behavior to any other Jewish person – violates this positive commandment, as is written: 'He shall be a sojourner among you… and you shall love him as yourself '" (Rabbi Jeroham Fischel Perla's Commentary to R. Saadiah Gaon's Sefer ha-Mitzvot, no. 82). And there is no doubt that, by adding the word "converted" in parentheses – which is not done regarding a "regular" Jew – we are not behaving in the same manner as we do regarding every other Jew; hence we are prohibited from doing so.
In the wake of the Six-Day War and the liberation of places holy to the three religions, the Israel Knesset passed the Protection of Holy Places Law, 5727 – 1967, Section 1 of which states that: "The holy places will be protected against all desecration and all other harm and anything that might impinge upon the freedom of access of members of all religions to those places holy to them, or their sentiments towards those places." Section 2 states: "One who desecrates the holy place or harms it in any other way is liable to imprisonment of seven years," and that "one who performs an action that is liable to harm the freedom of access of members of religions to places holy to them or their sentiments regarding those places, is subject to five years imprisonment." In view of the legislation of this law, it would appear that the purpose of the law was to ensure the freedom of access and worship in these historical, holy sites, that were just recently liberated, to each one of the religions.
In light of these provisions, Justice Elon ruled, regarding the controversy surrounding the *Kach party (ibid – Naiman, p. 302), that:
The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism – its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society
In its judgment, the Court decided not to disqualify the Kach list, for reasons of lack of judicial authority, to do so. In relating to this matter, Justice Elon further wrote (ibid, 303):
It was not, therefore, for lack of sensitivity to the gravity of the Kach list phenomenon that we refrained from endorsing its disqualification, but because the legislature has not empowered us or the Central Elections Committee to disqualify a list from participating in elections to the Knesset on ground of the content of its platform….
The consequence of not disqualifying the Kach list is difficult and saddening, considering the content of its platform, but it is right and proper not only in terms of our respect for the rule of law but also because it precludes the drawing of undesirable conclusions in such an important and complex matter.
[Menachem Elon (2nd ed.)]
Pluralism in the World of Halakhah
As opposed to other religions, Judaism always attributed intrinsic importance to a multiplicity of opinions in the religious-halakhic-and philosophical dimension. We related to this phenomenon, to a certain extent in the entry *Majority Rule, and will devote some additional comments in the current context. There seems to be no more apposite expression of this than the statement made by the Sages regarding the controversy between the School of Shammai and the School of Hillel that "these and these are the words of the living God" (Eruvin 13b; tj Berakhot 1:4; tj Yevamot 1:6). Despite the fact that, in terms of practice and obligatory norms, the halakhah generally follows the School of Hillel, the opinions of the School of Shammai continue to constitute a legitimate and substantive opinion in the world of halakhah. This approach was one of the basic features of the halakhah. The "rebellious elder," even after the Sanhedrin – the High Court of the nation – had ruled against his opinion, was permitted to adhere to his own view "and to adhere to his own opinion," provided only that he did not rule thus for others in practice (M. Sanhedrin 11:2; tb Sanhedrin 86b). Moreover, the opinion of the minority, which is not followed in practical life, may at some future time have its day and become the accepted view according to which people will behave. R. Judah said: "The [dissenting] opinions of individuals are only mentioned among those of the majority, so that if some day they are needed, they may be relied upon" (Tosef., Eduyyot 1:4 (ed. Zuckermandel)). And the same teaching appears in M. Eduyyot 1:5; as stated in the commentary of R. Samson of Sens, ad loc: "Although the view of a single person is not accepted at first, and many disagree with him, at another time the majority may accept his reasoning and the law be decided accordingly, for the entire Torah was so given to Moses at times to forbid and at times to permit, and when he was asked: "until when shall we deliberate?" he answered: "follow the majority; however both are the living word of God" (cf. M. Elon, Ha-Mishpat ha-Ivri (1988), 870–878; Jewish Law (1994), 1061–1072). This plurality of views is not a negative phenomenon or defect, but is substantive to the world of the halakhah. "There is no instability or shortcoming, such as to say that he causes more than one law to exist, Heaven forbid! On the contrary – such is the way of the Torah, and both are the words of the living God" (R. Ḥayyim ben Bezalel, introduction to Vikku'aḥ Mayim Ḥayyim (Prague, 16th century); and see in detail Elon, Ha-Mishpat ha-Ivri at 1145–1149; Jewish Law, 1375–1379). Moreover, plurality of views and approaches has the power to create harmony and unity out of difference. As the last of the codifiers, R. Jehiel Michal Epstein, said at the beginning of the 20th century (Arukh ha-Shulḥan, Ḥoshen Mishpat, Introduction):
All the disputes of the tannaim and the amoraim, of the geonim and the codifiers, are truly the words of the living God, and all are aspects of the halakhah. Indeed that is the glory of our pure and holy Torah, the entire Torah is a song, and the glory of a song is when it is sung in different voices. And this is the essence of its pleasantness.
Indeed this basic conception that "both are the words of the living God" has at all times exerted a decisive influence on the mode and substance of halakhic codification as well as decision. I have dealt elsewhere with the subject and need not expand upon it here (Elon, Ha-Mishpat ha-Ivri at 870, and the references in Jewish Law, 1061 n. 94).
In the Naiman case, Justice Elon noted that the plurality of views plays a material and fruitful role generally in the life of a just society. The rabbis even composed a special benediction to fit the secret encompassed in this notable phenomenon of a plurality of views in society: "If one sees a large crowd of people, one should say: Blessed is He who is wise in secrets; for neither their faces nor their thoughts are alike" (Tosefta (Zuckermandel), Berakhot 7:5; and see Berakhot 58a). This is a blessing for wisdom and creativity: "Just as the nature of creation still renders the countenances of all people different, so also are we to believe that wisdom is still shared by men each differing from the other" (Vikku'aḥ Mayim Ḥayyim (introduction)). Such a plurality of views should be respected by our leaders and government, as the following midrashic comments instructively indicate (Numbers Rabbah, Pinḥas 21:2; Tanhuma, Pinḥas 10):
Just as the countenances (of people) are not alike, so also their views, and each person has his own opinion …Thus on the point of death Moses begged of God: "Master of the Universe, the views of every one are well known to you and your children's views are not all alike. When I depart from them, I pray, appoint them a leader who will be tolerant of each person's view."
Justice Elon expressed this idea in the Naiman case: "That is the lesson of leadership and government in the heritage of Israel – tolerance for every individual and every group, according to their opinions and outlooks. And this is the great secret of tolerance and listening to the other, and the great potency of the right of every individual and every group to express their opinions, that they are not only essential to an orderly and enlightened regime but also vital to its creative power. For in the real world 'two opposing elements converge and fructify; how much more so in the spiritual world' (Rabbi A.I. Kook, Ha-Nir (Jerusalem, 1909) 47; Eder ha-Yakar, 13ff.)"
True, halakhic Judaism does not recognize the legitimacy of alternative streams that do not accept the binding yoke of halakahah. However, Deputy President of the Supreme Court Menachem Elon calls for tolerance in this area and attempts to find a balance between the practice that had developed within halakhic Jewry, the freedom of opinion that is a basic value in Judaism, and the avoidance of injury to the feelings of religious people.
An instructive example of this is his ruling in the matter of the Women of the Wall. In that incident, Justice Elon wrote:
In the holy places there is no other option – where there is conflict between the freedom of worship of the various worshippers among themselves – but to attempt to find a common denominator among all worshippers, even if as a result the freedom to worship of one group may be realized at the expense of the freedom of worship of the other. The unique solemnity and dignity that adheres to the holy places and their sanctified character requires that worship be conducted in the holy places with quiet and dignity, without rancor and dispute, so that each person may serve his Creator without harming the worship of his fellow. There is no way of achieving this goal other than by finding the common denominator of all the worshippers.
Thus, regarding that issue, Justice Elon did not allow the Women of the Wall to worship at the Western Wall Plaza, and said the following: "It is obvious and self-evident that the petitioners are entitled to pray in their way in their own communities and synagogues, and no one will prevent them from doing so. The petitioners' freedom of worship remains as it always was. But due to the uniqueness of the Western Wall and the great sensitivity of this holiest place for the Jewish people, prayer must be conducted in this unique and special place according to a common denominator that allows the prayer of every Jew as such; and this means that the custom of the place as it has existed for generations – must be maintained."
[Menachem Elon (2nd ed.)]
human rights: M. Elon, Ha-Mishpat ha-Ivri, 3:1391–92; idem, Jewish Law (1994), 1658–59, 1705, 1772–74, 1781, 1784; idem, Jewish Law (Cases and Materials) (1999), 539–43; S. Arieli, Mishpat ha-Milḥamah (1972), 35–36, 52–90; S. Goren, Torat ha-Shabbat ve-ha-Mo'ed (1982), 369–79; Y. Cohen, Giyyus ka-Halakhah (1993); A. Hacohen, "Al Ḥovat ha-Shivyon be-Sherut ha-Ẓeva'i," in: Daf Parashat ha-Shavu'a, 74 (Iyyar 2002). rights and freedoms: M. Elon, Ha-Mishpat ha-Ivri (1988), 1319–1629; idem, Jewish Law (1994), 1575–1946; idem, Jewish Law (Cases and Materials) (1999), 429–537; idem, Ma'amad ha-Ishah, 53, 163–164, 173, 210, 213; A. Hacohen, Parshanut Takkanot ha-Kahal, 218–20; idem, "Ha-Mishpat ha-Ivri ve-Ḥerut ha-Bittui," in: Daf Parashat ha-Shavu'a, 205 (2005); M. Vigoda, "Ẓin'at ha-Perat ve-Ḥofesh ha-Bittui," in: Daf Parashat ha-Shavu'a, 129 (2003); idem, "Bein Zekhuyot Ḥevratiyyot le-Ḥovot Ḥevratiyyot be-Mishpat ha-Ivri," in: Y. Rabin and Y. Shani (eds.), Zekhuyot Kalkaliyyot, Ḥevratiyyot ve-Tarbutiyyot be-Yisra'el (2004), 233; M.R. Konvitz (ed.), Judaism and Human Rights (20012). right to privacy: M. Elon, Ha-Mishpat ha-Ivri (19883); idem, Jewish Law (1994), 1856–60; idem, Jewish Law: Cases and Materials (1999), 545–66, §27; N. Lamm, "Privacy in Law and Theology," in: Faith and Doubt (1986), 290; E. Rackman, "Zekhut ha-Peratiyyut u-Kefiah Datit be-Yahadut," in: G. Firshtik (ed.), Zekhuyot Adam be-Yahadut (1992), 255: N. Rakover, "Ha-Haganah al Ẓinat ha-Perat," in: Jewish Law, 3 (1970); S. Dikhovsky, "Ha'azanat Seter," in: Teḥumin, 11 (1990), 299; idem, "Ha'azanat Seter," in: Torah she-Be'al Peh, 36 (1999), 58; Du'aḥ ha-Va'adah le-Haganah bifnei Pegi'ah Ẓinat ha-Perat (Jerusalem, 1978). the attitude to non-jews: M. Elon, Ha-Mishpat ha-Ivri (1988),1:9, 13f., 19, 23, 26, 32f., 46, 56, 86, 120, 416, 432ff., 516, 542f., 555, 575, 600, 602, 633ff., 641f., 646f., 649, 651, 654ff., 660, 663, 717, 885, 1223, 1247, 1256, 1322ff., 1374, 1606f.; idem, Jewish Law (1994), 55–57, 62–74, 786, 803, 806, 954–56, 959f., 971–72, 1688–90, 1914–17; idem, "Ha-Aḥer" ba-Mishpat ha-Ivri u-be-Pesikat Bet ha-Mishpat ha-Elyon," in: Mada'ei ha-Yahdut, 42 (2004), 31–94; Y. Bar-Asher, "The Right of Muslims to dwell in the Land of Israel," in: Zekhuyot ha-Adam be-Yahadut = Takdim 3–4 (Winter 1992), 113 (Heb.); A. Hacohen, "Christianity and Christians in Rabbinic Eyes in the Modern Period: From Rabbi Kook to Rabbi Ovadiah Yosef " (unpublished). pluralism in the world of halakhah: M. Elon, Ha-Mishpat ha-Ivri (1988), 227ff., 229ff., 870–72, 875–79f., 947ff., 965, 1016–18, 1212, 1465, 1553ff.; Jewish Law (1994), 1064–72, 1378–79, 1848–50; Cases and Materials (1999), 523–38, §25; H.H. Cohn, Ha-Mishpat (1992), 533–39; idem, "Al Ḥofesh ha-De'ah ve-ha-Dibbur be-Masoret Yisrael," in: Zekhuyot Adam be-Yehadut, Takdim, 3–4 (1992), 179.