Jerusalem Center for Public Affairs
Daniel Elazar Papers Index

Jewish Political Thought

Obligations and Rights in the Jewish Political Tradition: Some Preliminary Observations

Daniel J. Elazar

In the modern concept of rights developed in the seventeenth and eighteenth centuries, variously formulated as "life, liberty and property" or "life, liberty, and the pursuit of happiness," rights transcend civil society, which then translates them into constitutional, civil, criminal, and property rights. In contrast, the traditional Jewish view on rights is derived from the biblical sense of the obligation of all humans to God as their creator, sovereign, and covenant partner. Fundamental to the Jewish conception is the principle that God is the creator and sovereign of the universe, all of which ultimately belongs to Him including all life within it. What emerges out of the biblical approach are a series of protections and limitations which can roughly be translated into rights and obligations. While humans have nothing other than what God grants or covenants with them, as God's possessions no human instrumentality, certainly no state, can legitimately interfere with their God-given rights, liberties, protections, or obligations. While there may not be natural rights, there are fundamental rights in the sense that all humans are bound by covenant with God, at least through the Noahide covenant. These fundamental rights are in that sense constitutional or federal rather than inherent. A different agenda for the studying of obligations, rights, liberties, and protections must be developed to deal with classical Jewish thought and the subsequent Jewish experience.

Rights in the Contemporary World

The conventional wisdom in our rights-conscious age is that there is nothing quite as fixed and permanent as rights. The only changes that take place in connection with them are in connection with an expanded understanding of what constitute individual rights, their scope, and meaning.1 Serious students of the subject know that this is not exactly the case, that the very concept of rights as we understand it is a modern one developed in the seventeenth and eighteenth centuries as one of the foundation stones of modern democracy.2

We begin by trying to understand what we are looking for. Present understandings of rights are all derived from modernity; hence we can begin with the two most prominent modern formulations, that of Locke -- "life, liberty and property" -- and that of the U.S. Declaration of Independence -- "life, liberty, and the pursuit of happiness." The last of the Declaration's triad subsumes the right of property while defining a broader right to pursue happiness which is not directly defined. Under modern and post-modern rights doctrine, at least these rights are inherent in all humans and inalienable. At most, humans can come together for collective action in such a way that they delegate some control over the expression and effectuation of these rights to their common association in which they retain a decision-making role, directly or indirectly.

These rights transcend civil society, which then translates them into constitutional, civil, criminal, and property rights. Throughout much of the modern period, the rights directly associated with the two triads were considered to be natural rights. In the postmodern epoch they are defined as human rights. In either case, the theory provides that humans start with those rights and assume obligations only as they agree to enter civil society. In that sense, at least, obligations are secondary to rights and so they have come to be treated in rights-based Western democracies. The notion that for every right there is a corresonding responsibility or duty is not unknown and indeed is embodied in a number of contemporary constitutions, but it has been principally associated with less-than-democratic if not totalitarian regimes, offering them a means to pay obeisance to human rights while at the same time making it possible for the state to radically or drastically restrict their exercise.

Leo Strauss has taught us the difference between the modern and premodern philosophic understanding of rights and "right." Premodern classical philosophy understood natural right as part of natural law, a normative standard built into the universe. Classical natural right was related to the good life and the good commonwealth, which, while difficult of attainment by human beings, could be achieved with the right convergence of conditions and forces.

The good life within the good commonwealth was grounded in an appropriate understanding of the ideal public order and the duties of men in their efforts to achieve it. Modern natural rights, on the other hand, adhere exclusively to individuals and are derived from their natural psychology, "scientifically" discovered. Rights adhere to individuals qua individuals, and while their preservation is the highest norm, as rights they are not associated with normative goals but rather with the preservation of individual life and liberty as (close to) absolutes. Rooted in methodological individualism, they reflect the liberal principle that the individual is the only atom from which to begin the construction or analysis of civil society.

While early modern thought recognized and emphasized that all society is civil society, organized politically from its foundations (in contradistinction to premodern organic views, or nineteenth century views of the subject which sought the "automatic society" that existed independently of political organization), it also emphasizes that civil society's governmental dimension should be limited; indeed as limited as possible. For moderns of this school, civil society and government were instituted by individuals (solely) to protect their rights. Inevitably, in such a system, individual rights take precedence over all else, and every institution, including the commonwealth, ultimately is judged by how well it protects individual rights as defined. Since there is no other overarching conception of the good, there is no standard against which to measure individual behavior in the appropriate exercise of individual rights other than the ambiguous question of injury to others in the exercise of one's own rights.

The entire edifice of modern political life, indeed, of modern civil society, is constructed on this modern conception of rights, first embodied constitutionally in the English Bill of Rights of 1689 and expanded in the declarations of rights of the American state constitutions beginning in 1776, the U.S. Bill of Rights and the French Declaration of the Rights of Man both drafted in 1789. Its most recent and far-reaching expressions to be found in the Universal Declaration of Human Rights.3 This edifice is modified only to the extent that some would argue that every right has correlative responsibilities, a position which is viewed in certain quarters as less and less appropriate to postmodern democracy and to contemporary civil society.4

In the United States, for example, the conception of what constitutes rights among the thinking public has moved from the early seventeenth century conception of rights as liberties derived from prior obligations to modern individual rights to be protected by government in the spirit of John Locke, to natural rights as constitutional rights in the late eighteenth and nineteenth centuries, to the late twentieth century view of natural rights as human rights that take precedence over all social concerns. That is where Americans are today.5

The Traditional Jewish View

The traditional Jewish view offers a somewhat different position on rights and obligations which is derived from the biblical sense of human obligation to God as a result of our covenants with Him. To explore the traditional Jewish conceptions of obligations and rights, we must be prepared to resolutely confront a reality that is often very different from contemporary theories. We must do so without apologetics and most especially without attempting to reconcile or harmonize Jewish views with contemporary views in every case, unless it is clearly apropriate to do so.

So problematic is the topic before us for contemporary humans that the Encyclopedia Judaica has no entry at all under rights and under obligations has entries only with regard to the talmudic laws of property. While some of the issues raised here are treated in that work by eminent experts such as Judges Haim Cohn and Menahem Elon, they are subsumed under other categories.6 The Hebrew terms we use today to define rights are strictly modern ones whose usage was established within the last 100 years, as part of the development of modern Hebrew, in line with contemporary Western thought.7

After we complete our analysis we may be able to draw certain conclusions, but we must fully and frankly face the possibility that the Jewish tradition in this respect is radically different from the rights doctrines that we all have learned as normative. Our goal here as scholars is understanding. Whatever personal conclusions we draw from that understanding must be drawn separately.

We begin with the fact that Jewish tradition derives rights from the obligation of all humans to God as their creator, sovereign, and covenant partner. Fundamental to any Jewish conception here is the principle that God is the creator and sovereign of the universe, all of which ultimately belongs to Him -- "Ki li kol ha'aretz" (because the whole earth is Mine) -- including all life within it (Ex. 19:5; Lev. 25:23).

At the same time, since God's universe is founded on tzedakah u'mishpat (justice or right in the German sense of recht and law in the sense of right judgment), God's relations with His creatures must have a dimension of what have been called rights and liberties built in, as it were. Humans have what we call rights and liberties by the authority of our covenant with God. Whether or not tzedakah u'mishpat are built into the very fabric of the universe (i.e., represent the biblical equivalent of natural law) or are the products of covenant is a matter of some dispute among students of biblical and Jewish thought. This writer believes that while the potential for tzedek (justice) may be built into the universe, tzedakah u'mishpat exists by covenant and certainly must be actualized through covenants.

Tzedakah u'mishpat are of the essence in biblical rights terminology.8 They are invoked by tzaakah (literally, calling out) or appeal, what appears in the Bible to be a formal step; that is to say, where tzedakah u'mishpat are violated the victims can appeal (tzoak) to God or to human kings for redress. (Contrast the situation where humans must appeal to God for mercy because they have no particular rights at stake.) Moshe Greenberg argues that, according to the Bible, government is instituted among men to protect the tzedakah u'mishpat of the weak and perhaps solely for that purpose.9

The special significance of this for our topic is that while humans have nothing other than what God grants or covenants with them, as God's possessions no human instrumentality, certainly no state, can legitimately interfere with their God-given rights, liberties, protections, or obligations. Once God has commanded or covenanted (and his commandments are based upon His covenants), no human authority or agency has the right to interpose itself without the consent of those commanded or those who are partners to the covenant. As we all know, this, indeed, is the foundation of the modern development of rights, growing out of sixteenth and seventeenth century Reformed Protestantism which took these matters very seriously indeed.10

While partnership with God is based upon humans' acceptance of their covenant obligations toward Him, those rest upon the establishment of a certain measure of equality between God and humans, itself a very daring idea. Only those with at least a minimum of equality can be partners. Since the Bible projects an omnipotent, omniscient and eternal God while all humans are mortal and limited, even after eating from the tree of knowledge, that partnership is essentially a functional one, confined to certain tasks of yishuv ha-aretz (the settlement of the earth) and tikkun olam (the repair of the world); in other words, the earthly tasks of this world where humans increasingly have played a major role in God's scheme of things. It is by virtue of that partnership and the obligations that flow from it that humans have rights that are real rights, not at all diminished by being derived from obligations. Nevertheless, because they are rights that flow from God's covenant with humans, they are to some extent conditional on humans' maintaining their part of the covenantal bargain. In the language of the Puritans, they have a federal (foedus is the Latin term for covenant, a translation of brit) obligation, fulfillment of which guarantees their federal liberty, of which more below.11

The character of biblically-mandated obligations thus relates to the character of the covenant in question. Thus, humanity as a whole is bound by the Noahide covenant (Genesis 9), based on the common obligation of all to the recognition of God's sovereignty, the protection of human life, and the pursuit of justice on earth. For Jews, who are further bound by the covenant of Sinai, there is a further obligation of holiness (Deuteronomy 19-21) as the highest form of imitation of God. Whether or not the Jewish people in this respect were to be the pioneers for the rest of humanity or whether their holines is forever exclusive is a question that has been the subject of some discussion. (Many Christians see themselves so bound but with a twist.) While it does have a bearing on rights of citizenship, what bearing it has on human rights is an open question. On basic matters of human right to life, sustenance, property (within limits), and justice, the Bible explicitly provides that "the stranger within thy gates" has the same rights as Israelites, even in the land of Israel (cf. Ex. 23:9; Lev. 25:23; Deut. 15:29). What the outer limits of those basic rights are has been a matter of some discussion over the years.12

What is critical about the relationship between rights and obligations in the biblical tradition and in subsequent Jewish tradition is that those covenanted with God are obligated to their fellows under the terms of the covenant to do them justice, from whence derives their right to justice. The covenant partners are obligated because they are covenant partners. For Jews the obligation is that they must do justice to the widow and the orphan and the stranger in order to be holy (Ex. 23:9; Deut. 15:29). So it is not that the widows, orphans and strangers have rights in an abstract sense, but that they can call upon their fellow Israelites to live up to their obligations.

Is this merely a semantic point? I think not, because Israelites are equally obligated to do justice in the form of punishing those who are violators of God's covenant, who cannot claim some a priori natural or human right to be protected against such punishments. What they can claim on constitutional grounds is that the Israelites must live up to their obligations. In some respects that is an even stronger claim than a rights claim. But however it is perceived, it is a different one.

Even more than that, rights themselves are expressed as obligations. Thus humans have an obligation to remain alive and to preserve the lives of others. From this what moderns would refer to as the right to life can be inferred, but in classical Jewish sources it is expressed as the duty to maintain life -- your own and that of others -- a covenantal obligation, as it were. Thus the duty to preserve life is derived from the belief that it is God who bestows human life and therefore only He can prescribe the ways in which it can be taken away. Every human has a duty to preserve his or her life as part of his or her duties to God.

The issue is even more clearly joined in the case of property. The right of humans to own and use property can be derived from many scriptural statements of obligations, not the least of which is the commandment, "Thou shalt not steal" (Ex. 20:13; Deut. 5:17). Scripture also clearly states that all land and other property ultimately belongs to God who prescribes the parameters of its use by humans (Lev. 25:23). Thus, for example, people can own land. If that land is another Jew's nahalah (biblical inheritance) in Eretz Israel, it must be returned to the family of the original owners at the appropriate jubilee year (Lev. 25:8ff). While in a person's possession, agricultural land must be governed by rules providing for the poor to glean, the worker to eat of its produce, and the ox working the field not to be muzzled (Lev. 25:1-7).

Over the years these restrictions on property rights were interpreted broadly rather than narrowly to create a set of environmental rights that recognized the special needs of individual humans. These included protections of the right to sunlight that existed when a property was acquired, even at the expense of preventing another from building on his adjacent property in such a way that would interfere with that sunlight, or a right to ventilation protected in the same way. Whether formally defined that way or not, these were essentially duties/rights of re'ut, that is to say, neighborly comity of the kind described in Deuteronomy (e.g., Deut. 23:25-26; 24:10; 27:17) constitutionally required of Israelites in the Torah. Re'ut is an extension of hesed and as such is an obligation of holiness on the part of covenant partners.

A different and more extensive set of rights developed in the area of criminal protections (Ex. 21-24). In that field the relevant biblical passages were built into a comprehensive system of protection of the civil rights of individuals accused of crimes. These protections were so extensive that at points they bordered on the ridiculous as, for example, when certain Sages suggested that only if a person was actually warned at the time against committing the crime for which he was accused could that person be held responsible.

This ideal talmudic world of protection of the rights of the accused was seized upon by many contemporary Jews to claim, not improperly, that the Jewish people had pioneered in that field of civil and communal rights protection.13 Indeed, their writings even came to the attention of such bodies as the United States Supreme Court which cited talmudic precedents in some of their landmark cases.14 In fact, as we now know from the historical evidence available to us, it seems that there is a question as to whether these talmudic laws and standards were always enforced since the more extreme ones seem to have been developed after the autonomous Jewish authorities lost criminal law jurisdiction in the Roman Empire. In Babylonia, where the Resh Galuta acquired such jurisdiction, it was customary for accused criminals to be turned over to a parallel system of what might be called civil courts under his authority where trial procedures were more in conformity with the standards of the time, thereby preserving the talmudic principles intact while at the same time being able to administer a criminal justice system.15 Nevertheless, it can be said that the right to life was well-protected at least for those humans deemed bound by the Noahide covenant.

The Torah tends to be uncompromising in its expression of the obligations of humans in general and Jews in particular. The other books of the Bible introduce loopholes, the most important of which are associated with the mishpat hamelekh or mishpat hamelukhah (the law of the king or of the kingdom), derived particularly from I Samuel 8 where the prophet Samuel warns Israelites against seeking a king because of the powers a king inevitably has. It seems that even in biblical times kings exercised power over and above Torah constraints. Subsequently the idea of the mishpat hamelekh as a loophole, especially against stringent aspects of of the criminal law.16

What emerges out of the biblical approach are a series of protections and limitations which can roughly be translated into rights and obligations as when the poor are given rights to glean the fields during the harvest. Thus, many of these protections and limitations become what we would call rights, as protected through the Torah as any constitutional right is today. The result, as already noted, are rights and obligations stemming from the federal relationship between humans and God, what John Winthrop, the great Puritan governor of Massachusetts, was later to define as "federal liberty."17

In the last analysis, while there may not be natural rights, there are fundamental rights in the sense that all humans are bound by covenant with God, at least through the Noahide covenant (some Christians would claim an earlier covenant with Adam as well). These fundamental rights are in that sense constitutional or federal rather than inherent. They certainly are not like the vulgar modern conception of rights as the individual's right to do whatever he or she pleases, perhaps limited only by how an individual's actions effect others, but maybe not even by that.

Who Can Be Obligated and How?

This leads to another question, namely, who can be obligated and how. We have already touched upon this question to some extent in the preceding paragraphs, but it deserves to be sharpened because it has to do with rights that are other than fundamental. For example, while all humans are obligated by the Noahide covenant to recognize God's sovereignty and pursue and do justice, only Jews are obligated by the Sinai covenant to maintain the more extensive norms -- social and ritual -- of that covenant, and among traditional Jews there are distinctions between men and women as to who is obligated to do what with regard to rituals.

No such distinctions prevail, however, with regard to those obligations associated with what we understand to be rights. There all are equally responsible. The talmudic sages raise the question as to whether those obligations extend only to fellow Jews or to all humans. Thus the famous discussion between Rabbi Akiva and Ben Azzai, in which Rabbi Akiva states that the most important verse in Torah is veahavta l're'akha kamokha (love thy neighbor as thyself) (Lev. 19:18), while Ben Azzai claims that even more important is the verse elle toledot ha-adam (these are the generations of Adam) because rea (neighbor) has been interpreted by some to apply only to fellow Jews while the second verse clearly refers to the common descent of all humans and hence their common equality before God (Gen. 5:1-2).

Re'ut (neighborliness) is a good example of a biblical concept related to what we could call rights. It is a very important covenant concept, dealing with those to whom we are obligated beyond the letter of the law, what in Anglo-American jurisprudence is referred to as comity and in German as treu. In that way it also reflects a certain right which re'im possess toward one another. Thus it is important to establish who is a re'a to determine the scope of our obligations toward him.

What is clear is that biblical terminology dealing with these concepts is not our terminology. The biblical term expressing obligation is hesed, which is appropriately translated "loving covenant obligation." La'asot hesed (to act out of loving covenant obligation) reflects the way the burden is on he who is obligated to do what he does because of his covenant obligations and is connected with holiness.18 No other biblical word relates to what we call obligation. The contemporary word for obligation, hovah, comes into use only in the Middle Ages.

Hesed is a very powerful word and a very covenantal one. It cannot be understood apart from its covenantal dimension and the moral authority embodied within it is a very heavy one. There are three related biblical terms that relate to the concept of rights: yosher, tzedek, and mishpat. Yosher, from yashar, has to do with being straight -- with somebody or in one's own behavior. Tzedek is concerned with doing justice and mishpat with fulfilling the law. All three clearly refer more to the obligated party than to the possessor of the right. Yosher may possibly have some relationship to the latter as in Judges when Israelites are described as kol ish asa et ha-yashar b'einav (every man did what was right in his eyes), but that has to do more with what is defined as the straight path than with the possession of a right.

The one exception to all this lies in property rights as rights of citizenship. Every Jew has the right of nahalah (landed inheritance) which is a familial right that entitles every household to a permanent portion of the Land of Israel. The obligation of the Jubilee Year is designed to protect this right.

Exploring the Jewish Understanding

There are at least two ways to approach our discussion: One is through the identification of contemporary categories of rights and then to see whether there are corresponding rights in the Jewish political tradition. The other is to try to understand how the Jewish political tradition approaches the problem of the protection of humans from arbitrary exercise of power so as to secure their freedom to act or to what extent is that even a consideration in the classic Jewish political tradition. Both approaches are necessary to gain a proper understanding of the subject.

In his book Human Rights in Jewish Law, Judge Haim Cohn, after making the point that in classical Jewish thought rights are derived from or are expressed as duties, abstracts 25 rights from the Universal Declaration of Human Rights and presents their correlates in Jewish law.19 He divides those rights into three groups: 1) rights of life, liberty, and the pursuit of happiness; 2) rights of equality; 3) rights of justice. His list is as follows:

I. Rights of Life, Liberty,and the Pursuit of Happiness

  1. The Right to Life
  2. The Right to Liberty and Security of Person
  3. Slaves and Slavery
  4. The Right to Privacy
  5. The Right to Reputation
  6. Freedom of Movement and Residence
  7. The Right to Asylum
  8. The Right to Marry and Found a Family
  9. The Right to Property
  10. The Right to Work and Remuneration
  11. The Right to Leisure
  12. Freedom of Thought, Speech, and Conscience
  13. Freedom of Information
  14. The Right to Education and Participation in Culture

II. Rights of Equality

  1. All Men Are Born Equal
  2. Discriminations on Account of Race
  3. Discriminations on Account of Religion
  4. Discriminations of Aliens
  5. Discriminations of Women
  6. Discriminations on Account of Birth
  7. Discriminations on Account of Property

III. Rights of Justice

  1. Equality Before the Law
  2. Judicial Standards
  3. Procedural Safeguards
  4. Torture and Cruel Punishments
  5. Legislative Safeguards

While Judge Cohn's starting point is contemporary rights theory and he transposes Jewish tradition into contemporary rights language, he does so honestly and fairly without claiming too much or avoiding the limitations on rights and liberties under Jewish law. Still, he finds that within the context described above, Jewish law protects virtually all of what are believed by moderns and postmoderns to be fundamental human rights. He shows that those protections are derived from the Bible itself, although in some cases their biblical basis had to be enlarged through interpretation by subsequent sages.

Transitions and Transformations

A somewhat more articulated theory of rights was developed in the Talmud in the days of the tannaim and amoraim. As elaborations of the Torah, both the Mishnah and the Gemarah attempted to elaborate specifics with regard to obligations and rights as in every other field. A new terminology began to develop with such words as zekhut and its derivatives (e.g., zakhai) and reshut and its derivatives (e.g., rashai) introduced (kol sh'ani zakhai b'amirato, rashai ani l'hakhshikh alav [Shabbat 23:3]; Sh'ain doro zakkai l'kakh [Sanhedrin 11]). Here we begin to get a conception of rights as such, albeit within the framework of the obligations imposed on humanity through God's covenants and on the Jews through the Torah. Still the terms are most frequently used in connection with property.

The Talmudic discussions go into details of the enforcement of obligations and, by implication, rights, often in an extremely formalistic way, although at the same time they provide for a sufficiently dynamic approach to include what Anglo-American law defines as equity. Based on Deuteronomy 6:18, "And thou shall do what is right and good in the sight of the Lord," "right and good" became the basis of equity in Talmudic jurisprudence.

In addition to the Bible and the Talmud, one finds the issues of rights treated in the medieval codes, the responsa, and commentaries on the Bible, Talmud and codes. All of these are particularly important after the closing of the Talmud in the at the end of the fifth and early sixth centuries and became particularly important from the eighth century onward. Their role in the case of obligations and rights, much like their role in other spheres of Jewish law, was to synthesize, elucidate, and apply accepted rules to new situations.

For our purposes, the greatest of the codes was Maimonides' Mishneh Torah which provides the most detailed and comprehensive listing of obligations and rights defined and explained. The Mishneh Torah has also served to bring together the halakhah and the mishpat hamelukhah under one roof, so to speak. Nevertheless, as important as it is, it is not simply authoritative. Different interpretations of the meaning of certain obligations and rights are to be found among different sources throughout the medieval period, even when normative Judaism was dominant.20

The Talmud also brought with it the beginnings of a rights terminology, although essentially in relationship to property, not to rights as we know them. That terminology was further developed and amplified in the medieval codes and commentaries. As to be expected, the Hebrew usage took its cues from common medieval usage and reflected a premodern European or Islamic conception of right rather than a modern conception of rights.

With the coming of the modern epoch in the mid-seventeenth century and the Jewish emancipation that followed in its wake, particularly after the American and French Revolutions, modern Jews began to think in terms of rights as preceding obligations. A rather unusual example of this was the actual inclusion of a bill of rights in the 1790 constitution of Congregation Shearith Israel, the oldest congregation in the United States.21 While that was exceptional, congregational community constitutions did undergo changes as their ability to oblige their members to behave in acceptable ways diminished in the face of the increasingly voluntary character of membership. This happened first in the United States and, until the twentieth century, only to a lesser extent in Europe, but still it happened wherever Jews were emancipated.

A contemporary Hebrew terminology of rights dates from the modern epoch. For the most part it was developed by the maskilim, either in the German haskalah (Jewish enlightenment), which came at the time of the French and American Revolutions, or in some cases a hundred years later by the leaders of the Eastern European haskalah. In some cases the terminology was not developed until the twentieth century, either in the United States or in Eretz Israel as part of the revival of the Hebrew language at a time when Jews were consciously returning to the political arena. The principal term for rights, zekhuyot, was adapted from talmudic and medieval usage, but was rather substantially transformed. To indicate how recent these transformations took place, Yaakov Canaani's Otzar Halashon HaIvrit, the most recent Hebrew dictionary on historical principles, identifies certain usages as coming from the Eastern European haskalah poet Y.L. Gordon, or from Daniel Persky, leader of the American Hebrew movement between the world wars.

In the last analysis, however, even under modern conditions Jewish doctrine begins with obligations from which rights are derived rather than vice versa. It may have become a matter of free choice as to whether to accept the obligations involved, but still the obligations take precedence. Thus in the most secular kind of situation a Jew is obligated to join a Jewish community and pay appropriate membership fees or taxes before being able to enjoy any of the rights or privileges of membership. While this is a pale reflection of the biblical covenantal tradition, it is still an extension of that tradition. The precedence of obligation continues to be part of the postmodern Jewish experience where issues such as the rights of women in ritual matters for some also hinge on acceptance of commensurate halakhic obligations. Thus even as Jews have become modern in their understanding of human rights, they have retained more traditional Jewish notions in connection with Jewish matters.

What Needs to be Studied

Given the foregoing, it should be clear that a different agenda for the studying of obligations, rights, liberties, and protections must be developed to deal with classical Jewish thought and the subsequent Jewish experience. These include the original and changing nature of obligations as rights or limits on rights, and why; the relationship between justice and holiness; how loopholes are used in justification; historic transformations of the accepted understanding of obligations and rights; the problem of coercion; the relationship of political and civil, public and private, obligations and rights.


If one were to try to summarize the basic Jewish theory from which rights are derived, I would suggest the following five points:

  1. God is sovereign over all humans and the universe.

  2. All humans are created equal and, through Adam and Eve, are descended from the same ancestors, so that no primordial distinctions can be made among them.

  3. As equals all can covenant and assume partnership obligations with God.

  4. All must covenant or accept being bound by covenant in order to have what we call rights, which are essentially obligations that either can be inferred from the terms of the covenant or are obligations that are themselves rights.

  5. The result is federal liberty, that is to say, the liberty to live according to the terms and obligations of the covenant which in turn provides rights and protections.

The system presented in the Bible is among those that try to accommodate the individual in the commonwealth without abandoning the fabric of the commonwealth as a collectivity with its own responsibilities. The basis for this effort is three-fold: first of all, the idea that every individual is created in the image of God, has a soul, and is holy. Second, that it is the task of the individual and the community, indeed the individual in the community, to strive to be holy by observing not only what are today referred to as prescribed religious rituals, but by doing justice, providing for the poor, maintaining human freedom and dignity, and assuring a basic economic floor for every household.

Third, every individual is morally autonomous and his or her consent is required for all acts, even in response to God's commandments. In biblical terminology, God commands but humans hearken (shamoa). That is to say, they listen to God's commandment and in essence decide whether or not to observe it. Biblical Hebrew has no word for obey. All human actions require hearkening.

Fourth, humans act together through covenants and covenanting, beginning with the foundation of existence, man's covenant with God, whereby God enters into a partnership with humans for the fulfillment and governance of this world. According to the terms of the constitution which He has set before them, all human organization flows from that original covenant and is ordered by the subsidiary covenants to which the parties must consent and which are morally binding under God who serves as partner, guarantor, or witness. All, of course, are based on consent and the ability of the partners to make autonomous moral commitments.

While we do not know exactly how this biblical system worked in practice in ancient Israel, we can gather some sense of its reality in the way it has shaped the Jewish people who are noted for their commitment to individual autonomy, liberty, and equality, and for their striving to achieve one or another moral end and the tendency to view public issues in moralistic terms even as they are among the most communal, even tribal, of peoples, tied together through a rich fabric of history and destiny.

What of the matter of rights? For the Bible, the question of rights is derived essentially from the question of justice and the human obligation of God to act justly. Politics provides the framework and the means to act justly and to do justice. Thus the fundamental associations of political community -- public and private, civil and natural -- are media for doing justice.

Beyond that, each form of association forms a particular kind of moral community within which justice is to be achieved and right or rights protected in a diferent way. One of the principal lessons of the biblical teaching for us today is that humans are organized in different moral communities, and right or rights with regard to each must be treated in a manner appropriate to it.

The modern worldview, by emphasizing the individual standing naked against civil society as represented by government, has increasingly come to emphasize the legal enforcement of legally defined rights. Originally applied to government alone, this approach to rights has been extended to other forms of civil associations and even more recently to natural associations, public and private, because of that oversimple and limited perception of the political relationship underlying civil society, what constitutes rights, and how they are to be enforced.

In a just society, there must be an appropriate conceptualization of right and rights for relationships within each different kind of moral community with appropriate means of enforcement. In ancient and medieval society, much justice was promised without sufficient means of enforcement. Modern political thought successfully attacked that problem by providing means of enforcement but, in the process, rejected a more complex view of what constitutes justice or right, a view based upon an understanding of the different forms of association in which humans are involved, recognizing the fact that all such associations being established on the basis of covenant includes the dimensions of justice and right and establishes or systematizes relationships upon which appropriate theories of rights and rights enforcement can be based.

We postmoderns understand the truth and vital importance of the revolutionary modern idea of rights. But we also understand that while it may be the truth it is not necessarily the whole truth. We may better understand that, while individual liberty is essential for us all, so, too, are the institutions of family and community so that the public institutions of civil society will rest on the proper foundations; not only in the way that they are constituted but in terms of the private dimension in which they serve to function as they are intended to function. The character of the res publica (or commonwealth) depends on the character of the public it serves and just as there can be no res publica without a public so does the character of the res publica rest upon the kind of public within it.


1. Contemporary works on human rights include: Ronald S. Dworkin, Taking Rights Seriously (Cambridge, Mass.: University of Harvard Press, 1978); John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971); L.W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987); Judith J. Thomson, The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990).

2. Cf. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953); Thomas Hobbes, Leviathan (London: J.M. Dent & Sons, 1947); John Locke, Two Treatises of Government, edited by Peter Laslett (Cambridge: Cambridge University Press, 1960).

3. Albert Blaustein, Constitutions of the World (Dobbs Ferry: Ocean Publications, 1990) and Albert Blaustein, Roger Clark, and Jay Sigler, A Human Rights Sourcebook (New York: Paragon, 1987); Donald Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana University Press, 1988) and Popular Consent and Popular Control (Baton Rouge: Louisiana University Press, 1980).

On the English Bill of Rights, see Maurice Ashley, The Glorious Revolution of 1688 (London: Hodden and Stoughton, 1966), pp. 206-209 (Declaration of Rights) and pp. 183-191. Cf. also John Miller, The Glorious Revolution (London: Longman, 1983), pp. 34-38 and 114-116.

4. On rights and responsibilities, see James F. Childress, Moral Responsibility in Conflicts (Baton Rouge: Louisiana University Press, 1982); Ren Blanchard Edwards, Freedom, Responsibility and Obligation (The Hague: M. Nijhoff, 1969); William Horosz, The Crisis of Responsibility (Norman: University of Oklahoma Press, 1975); Hans Jonas, The Imperative of Responsibility (Chicago: University of Chicago Press, 1984); Ralph Ross, Obligation (Ann Arbor: University of Michigan Press, 1970).

5. Cf. forthcoming issue (1992) of Publius on rights.

6. Encyclopedia Judaica, Cf. Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984), especially the Introduction, "Rights and Duties"; Menachem Elon, The Principles of Jewish Law (Jerusalem: Encyclopedia Judaica, 1975) and The Restraint of the Person as a Means in the Collection of Debts (Jerusalem: Magnes Press, 1981).

7. Cf. Yaacov Canaani, Otzar HaLashon HaIvrit (Tel Aviv: Masada, 1968); Abraham Ben Shoshan, HaMilon HaHadash (Jerusalem: Kiryat Sefer, 1957).

8. Moshe Greenberg, "Al Zekhuyot U'Hovot Ba Mikrah" (On Rights and Obligations in the Bible) presented to the Beit Vaad Seminar on Obligations and Rights in the Jewish Political Tradition, Jerusalem Center for Public Affairs, November 8, 1991 (Unpublished; transcript and working paper in the files of the Jerusalem Center for Public Affairs).

9. Ibid., p. 3.

10. See, e.g., Harold J. Laski, A Defense of Liberty Against Tyrants, a translation of the Vindicae Contra Tyrannos by Junius Brutus (New York: Burt Franklin, 1972); John Milton, Areopagitica, with a commentary by Sir Richard C. Jebb (Cambridge: Cambridge University Press, 1940) and Paradise Lost, edited by Alistair Fowler (London: Longman, 1971); J. Wayne Baker, Heinrich Bullinger and the Covenant (Athens, Ohio: Ohio University Press, 1980).

11. On the biblical, talmudic and later Jewish views of covenant, see Daniel J. Elazar, ed., Kinship and Consent: The Jewish Political Tradition and its Contemporary Uses (Jerusalem: Jerusalem Center for Public Affairs and University Press of America, 1983) and The Covenant Tradition in Politics, vol. 1, (forthcoming).

12. Cf., Cohen, op. cit.

13. Cf., inter alia, Sol Roth, Halakhah and Politics: The Jewish Idea of a State (New York: Ktav, 1988); Louis Finkelstein, ed., The Jews: Their History, Culture, and Religion (New York: Schocken Books, 1970).

14. U.S. Supreme Court cases citing Jewish sources include: County of Allegheny v. American Civil Liberties Union (1989), 492 U.S. 573, 109 S.Ct. 3086; Murray v. Curlett (1963), 374 U.S. 203, 83 S.Ct. 1560; McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson 343 U.S. 306 (1952); Torcaso v. Watkins 367 U.S. 488 (1961); Engel v. Vitale 370 U.S. 421 (1962); and Nom. School District of Abington Township v. Schempp 374 U.S. 203 (1963).

In McCollum, the court ruled to allow a certain "released time" during which sectarian religious education could be offered during the school day. Zorach extended this "accommodation" by granting the use of public funds for religious instruction in schools. In Torcaso, Justice Black wrote the decision striking down a provision in the Maryland constitution which required prospective public officials to take an oath of faith in God. In Engel, Justice Black again wrote the decision striking down the use of a non-sectarian prayer in New York schools. In Schempp, Bible-reading and the Lord's Prayer were prohibited from public school education.

15. Moshe Ber, Amorai Bavel (Ramat Gan: Bar-Ilan University Press, 1982) (Hebrew); and Shalom Albeck, Batei HaDin BeYamei HaTalmud (Ramat Gan: Bar-Ilan University Press, 1980).

16. Cf. Simon Federbush, Mishpat HaMeluchah B'Yisrael (Jerusalem: Mossad HaRav Kook, 1952) (Hebrew).

17. For Winthrop's speech in which he refers to federal liberty, see Sam Savage, ed., History of New England, 1630-1649 (Boston: Harvard University Press, 1853), Vol. 2, pp. 279-282.

On federal liberty, see also Frederick Carney (trans. and ed.), The Politics of Johannes Althusius (Boston: Beacon Press, 1962); and Daniel J. Elazar, The American Constitutional Tradition (Lanham, Maryland: University Press of America, 1989), p. 167.

18. On hesed, see Elazar, Kinship and Consent; Nelson Glueck, Hesed in the Bible (New York: Ktav, 1975); Moshe Weinfeld, "Jeremiah and the Spiritual Metamorphosis of Israel" (Reprint from Zeitschrift fur die Testamentlische Wissenschaft, 1976); and Norman Snaith, The Distinctive Ideas of the Old Testament (New York: Schocken Books, 1964).

19. Cohn, op. cit.

20. Cf. Gerald Blidstein, "Individual and Community in the Middle Ages," in Elazar, Kinship and Consent, pp. 217-258; and Menachem Elon, "On Power and Authority: Halachic Stance of the Traditional Community and Its Contemporary Implications," in Kinship and Consent, pp. 183-216.

For an overview of medieval Jewish theories of rights, cf., inter alia, Saadia Gaon, Book of Opinions and Beliefs, translated by Samuel Rosenblatt (New Haven: Yale University Press, 1976); Maimonides, Guide of the Perplexed, translated with an introduction and notes by Shlomo Pines with an interpretive essay by Leo Strauss (Chicago: University of Chicago Press, 1963); Isadore Twersky, ed., Explorations in Nachmanides' Religious and Literary Virtuousity (Cambridge, Mass.: Harvard University Press, 1983); B. Netanyahu, Don Isaac Abravanel: Statesman and Philosopher (Philadelphia: Jewish Publication Society, 1953), esp. part II, ch. 3; and Yehudah HaLevi, The Kuzari, translated by Hartwig Hirschfeld (New York: P. Shalom, 1969).

21. Reprinted in Daniel J. Elazar, Jonathan Sarna and Rela G. Monson, eds., A Double Bond: The Constitutional Documents of American Jewry (Lanham, Maryland: University Press of America and Jerusalem Center for Public Affairs, 1992).

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