The wide public attention focused on the Fifth Amendment in the recent past, and the vehemence with which it has been both attacked and defended, have prompted students of Jewish law to examine its equivalent in traditional Halakhah. A comparison of the principle of self-incrimination, as embodied in Constitutional Law and in the Halakhah, is revealing on the level of both theory and practical consequence. The embattled Amendment, with its provision that "no person . . . shall be compelled in any case to be a witness against himself", is certainly one of the most fundamental and advanced principles of Anglo-American jurisprudence.The wide public attention focused on the Fifth Amendment in the recent past, and the vehemence with which it has been both attacked and defended, have prompted students of Jewish law to examine its equivalent in traditional Halakhah. A comparison of the principle of self-incrimination, as embodied in Constitutional Law and in the Halakhah, is revealing on the level of both theory and practical consequence. The embattled Amendment, with its provision that "no person... shall be compelled in any case to be a witness against himself”, is certainly one of the most fundamental and advanced principles of Anglo-American jurisprudence. Two great legal thinkers, Dean Griswold and Supreme Court Justice Douglas, writing separately, have recently referred to it in identical terms: an old friend and a good friend. Its significance in our whole tradition of liberty cannot be overrated. The law against compelled self-incrimination dates back to the 12th century, and achieved real prominence and effectiveness when it was upheld by the House of Commons in “Freeborn John” Lilburne’s quarrels with the infamous Star Chamber in the 17th century. It became part of the United States Constitution as the Fifth Amendment in 1791. The Amendment has been invoked, questioned, attacked and defended in the past, but it was the Communist issue that, amid heated controver…

The question of privacy in contemporary American society is a subtle and enormously complex legal problem, and one which also entails fundamental moral and ethical dimensions. The social and political implications of the new surveillance technology and the enormity of the threat it poses to the dignity and liberty of the American citizen have been aptly described in The Intruders, by Senator Edward V. Long, who heads the Senate Sub-Committee which has been investigating its abuses. The book’s exposé of the sophisticated, cheap, and easily accessible gadgets designed to destroy personal and corporate privacy should leave no doubts in our minds as to the magnitude of the problem. It is as a result of this gradual erosion of privacy, to a large extent by law-enforcement agencies, that the entire question of the legal and philosophical dimensions of privacy has entered the public forum. As a contribution to this discussion, we shall here analyze the view of classical Judaism on privacy and show that many of the problems we are now wrestling with were treated explicitly and analytically during the last three and a half thousand years in the Jewish tradition. Our major reference shall be to Judaism’s highly developed legal code, the Halachah, which was first systematized and redacted in the Mishnah (second century of the Common Era) and the Gemara (fifth century), both together comprising the Talmud. In our country, the right of privacy first became a public issue in 1761, when James Otis, representing Boston merchants, appeared in the Superior Court of Massachusetts Bay to protest the application of the Collector of Customs to enter and search any premises with no safeguard against abuses. Although Otis lost his case, it was “the first blow for freedom from England.”1 It is the Fourth Amendment, ratified in 1791, that is usually considered the constitutional source for the protection of privacy. The amendment reads: The right of the people to be secure in their persons,…

The assassination of President Kennedy was a traumatic event in the collective consciousness of the American people and, perhaps, of the entire world. The profound psychological consequences of this senseless tragedy have yet to be experienced in their entirety. But in recent weeks all the emotions, private and public, that have adhered to the assassination and the personality of the martyred President have been aroused in the controversy that has developed about the publication, in book form and in magazine serialization, of William Manchester’s “The Death of a President.” Mrs. Kennedy and her family have attempted to stop publication of this book, or at least to delete certain passages they regarded as offensive or in bad taste; the author and publishers have pleaded freedom of the press and the right of the world to know history in all its significant and intimate details. To a great extent, the controversy turns on the determination of certain facts, such as whether or not an authorized representative of the Kennedy family tacitly approved the text before publication. In recent days and weeks, it appears that the American publishers have come to an agreement with Mrs. Kennedy, but that German, and possibly Formosan and other, publishers will print the uncensored text of Mr. Manchester’s book. Such questions of fact and of contractual obligations shall not concern us in this essay. More important for the sake of the light it may shed on related issues in the present and in the future is the larger question of—as a national news-weekly put it — the rights of privacy versus the claims of history. Which of these two should take precedence: the right of a person to his own privacy and to guarding any information about himself from the prying eyes and ears of his neighbors, or the right of all mankind to know the details of the great events that shape the history of our times and possibly of generations to come? What we shall here attempt is a Jewish view on what mig…

Staten Island, New York. Of late, a spate of articles and letters have appeared in Jewish Life and elsewhere comparing Jewish law to the common law. While this is a very gratifying development for many reasons, a caveat hinted at in Rabbi Wein's article “Threading the Needle of Jewish Law” (July 1967) should be heavily stressed to avoid some unfortunate errors. The so-called criminal law of the Talmud as applied to a ben Yisrael is wholly inappropriate to a present-day penal system. If directly applied, its leniency would result in a complete breakdown of law and order. Present-day penal laws are based in varying degrees on achieving three fundamental purposes: deterrence, retribution, and correction. Talmudic law, however, as applied to a ben Yisrael, is unique in that its underlying purpose is in obtaining atonement (kapparah) for the defendant. It presupposes a high morality on the part of the society to which it is applied (see Wein, p. 36). Furthermore, the concept of the court as referee between two contestants is not as applicable in Jewish law as in common law. In the former, the function of the court is deemed to be more of a teacher instructing the litigants as to their duties rather than as an umpire in a contest. Direct comparisons, therefore, may be very dangerous. Such an unfortunate comparison was made by Rabbi Norman Lamm, who is mentioned by three letter-writers in the July–August issue as having conclusively shown in his celebrated discussion of the Fifth Amendment and Halakhah — which was cited by Chief Justice Warren in the Miranda case — that the Torah view and the Supreme Court are harmonious. Regrettably, that brilliant but unsound article failed to distinguish between a ben Yisrael and a ben Noach. In the case of the latter, as far as I can discover, a confession is admissible and may be sufficient to convict (see Sefer ha-Chinukh, mitzvot 28, 192; Bereishit Rabbah [Noach 34:19]; Yerushalmi Kiddushin, perek 1, halakhah 1). After all, Mirand…

The Talmudic sage Rava compressed his understanding of the human condition into four Hebrew words: O havruta o mituta. "Either companionship or death." Without the possibility of human relatedness, man is empty. Without an outside world of human beings, there can be no inside world of meaningfulness. Personality, liberty, love, responsibility — all that makes life worth living — depend upon a community in which man can locate and realize himself. But man is more than the sum total of his connections with others. There must be a self in order for there to be communication; there must be an inner existence to relate to the outer world. If man is not an island, neither is he a switchboard, a maze of wires that transmits the messages of others but has nothing of its own to say. God created men out of the dust of the earth and blew into his nostrils the breath of life, man became "a living soul" (Genesis 2:7). Onkelos, the Aramaic translator of the second century C.E., renders that phrase "a speaking soul." Speech is the vehicle of relationship. Man is a composite of both soul and speech, of self and a society to whom that self relates. Without '"soul" or self, he is no more than an elaborate cybernetic mechanism, lacking content or meaning. Without "speech" or social relations, he is only a species of protoplasm, so withdrawn he might as well be dead.For man to be man he must maintain the delicate tension between self and society, between personal privacy and public relationships. Mediat-ing between them is the family. Juda-ism is concerned with all three as-pects of man's existence. It addresses itself to the question of his inner psychic and spiritual life, his dignity and destiny. But its major concern is with the quality of man's relation-ships to the world around him, and these are usually developed within the family.This emphasis on family and com-munity may best be understood in terms of the way Judaism treats the very beginnings of man. The Bible offers two acc…

Now that the highest court in the land is prepared to study the problem of President Nixon’s refusal to surrender the famous tapes, it is timely to inquire what Jewish law has to say about this historic confrontation between the executive and the judiciary. Can any wisdom be gleaned from the Hebrew tradition, one of the main streams that feed into Western culture and civilization? The Mishnah, (the Jewish legal code redacted by Rabbi Judah in Palestine during the early part of the third century) teaches that a king may not judge and may not be brought to trial; others may not testify against him and he may not be made to testify concerning others. The Talmud (the Babylonian commentary and extension of the Mishnah) limits this law to “Israelite Kings,” i.e. those who were not of Davidic descent. Kings of the House of David, however, are subject to judgment and may be compelled to testify. The Talmud then concludes that fundamentally the law requires that the king should submit to judgment and testimony, but that an exception was made in the case of later Jewish Kings (“Israelite Kings”) because of a historic incident.In the first century of the common era Jannai was King, and the head of the Sanhedrin (supreme court) was the fearlessly independent Simeon ben Shetach. Now it happened that a servant of the King had been accused of committing murder. According to the law, the master had to be present during the trial of the slave. Jannai obeyed, and presented himself in court. But then Simeon informed Jannai that the law required the master to stand while the trial was in session.Aware of the sensitivities involved, Simeon hastened to assure the King that “you are not standing before us, but before Him who by His word created the world.” Here Jannai drew the line and hurled a challenge at Simeon: “not when you say so, but only when your colleagues will tell me so.” The shrewd monarch had made the right move. Simeon turned to his right, and his colleagues “buried their …

Benjamin Nathan Cardozo, in his small but influential volume, The Nature of the Judicial Process, made a major effort to separate and describe the subjective elements that operate in the judge’s decision-making process and in the body of objective law which he must consult and whose loyal interpreter he must be in reaching a judicial decision. The four “methods" he elaborates offer a structure by which to probe the degree of freedom of and restraint upon the judge in his judicial role.It is appropriate to pursue the same theme in other forms and traditions of law. This essay is devoted to a preliminary exploration of the question of freedom and constraint in the Jewish judicial process. Because of certain basic dissimilarities between Jewish law (Halakhah) and Anglo-Saxon and American law, the problem will have to be posed in different form and begin with more fundamental philosophic issues. Hence, we shall first investigate the theoretical underpinnings of the question, and we shall then proceed to a halakhic survey and analysis.I. The Halakhic System: Monistic or Pluralistic?The Halakhah claims for itself divine origin: the Written Law (or Torah—i.e., the Scriptures, especially the Pentateuch) and the Oral Law (later reduced into writing in the Talmud) were revealed to Moses at Moun nai, and contained a warrant for the judges of each succeeding generation to decide, in each case brought before them, all doubts and disputes in the light of the revealed legislation. This assumption of divine provenance must, of course, be accepted at face value and on its own terms if any investigation into the nature of the halakhic judicial process is to be valid in assessing the role of the judge who must, a priori, accept this assumption in order to qualify as a judge.The problem, then, may be stated as follows: Is the Halakhah, which has undergone massive development and elaboration through the centuries, always assumed to be in consonance with the absolute, divinely revealed …

One of the defining characteristics of the Jewish religious personality is tzeniut which may approximately be translated as modesty. Normally, the concept of tzeniut is discussed in rather technical terms: how low or how high a hemline, the length of sleeves, the form of dress, the number of square millimeters of skin that may be exposed, and so on. Indeed, these are important issues, but they are aspects or details of tzeniut, not its heart. It would be a pity to limit our understanding of tzeniut to that which can be measured by a ruler, while ignoring its conceptual matrix. What should concern us is the world view of Judaism that informs the concept and the practice of tzeniut, an exceedingly important Jewish principle and value which touches the fundamentals of our faith. In seeking the broader implications of tzeniut and its universal context, we must explore three dimensions of tzeniut. The first of these is the principle of kedushah, holiness. The Torah says, "You shall be holy." The Sages of the Talmud comment: hevu perushim min ha-arayot, you shall separate yourselves from immorality. The commandment thus concerns immorality in its strictly sexual significance. The more one transcends his corporeal nature, expressed in illicit sensuality, the more one is able to achieve personal sanctity or kedushah. How does tzeniut relate to kedushah? I heard an explanation from my illustrious teacher and mentor, Rabbi Joseph. B. Soloveitchik, zekher tzaddik li'verakhah. The "Rav," as he was known, offers this trenchant insight: kedushah thrives in he'elem, in hiddenness, in obscurity, not be'giluy, openness. (Indeed, the Torah's euphemism for illicit sexual intercourse is giluy arayot, the exposure or baring to public view of nakedness.) Hiddenness is what links the two concepts of modesty and holiness. The holiest place in the world for Judaism is the kodesh ha-kodashim, the Holy of Holies in the Beit Hamikdash, the Temple in Jerusalem. The holiest person during the se…

רב אחד בקהילה חשובה פנה אלי בשאלה מאוד כאובה: שני בני אדם, חברים חשובים בבה״כ אורתודוכסי, אמידים ׳מימים בעלי צדקה וחסד ותומכים את ביהכנ״ס ביד רחבה, שותפים כמעט בקל נכסיהם. והנה פרץ ריב מלא קנאה ושנאה כשראובן ושמעון, ולא יכלו לדבר שלום איש את רעהו. וכשהתגברה אז המחלוקת בין שניהם, הגיש ראובן תלונה בערכאות הממשלה נגד שמעון, וכך הגיע המצב לידי שנאה גלויה בלי מצרים. שמעון התעקש ואמר שאם גבאי ביהכנ"ס יתנו איזשהו כיבוד לראובן, יתפטר מהקהילה ושוב לא יימנה תומכיה אף לפרוטה. שמעון לחץ על הרב שינדה את ראובן מאחר שהוא התחיל! בהתערבותו של הערכאות. כשראיינתי את ראובן והודעתי לו שעונשו חמור, אמר שלא ידע את הדין^כלל אין הידיעה על איסור עכראות נפוצה בין רוב המתפללים. כשעיינתי שוב בתהליך הדיון הממושך בערכאות, גליתי שפעם אחת במשך הויכוח הסוער ביניהם אמר שמעון לראובן: הבה נלך לבית דין רבני והם יהיו הפושרים בינינו. ראובן סרב, והדברים התחילו להתגלגל ולהתדרדר עוד יותר. הרב נמצא במבוכה נוראה, שפרנסתו וקהילתו שתיחם בסכנה, וביקש ממני חוות דעתי כדת מה לעשות.הנה חומר האיסור של הליכה לערכאות מבואר בכמה מקומות. כך שנינו בגיטין פ"ח ע״ב: "תניא היה רבי טרפון אומר, כל מקום שאתה מוצא אגוריאות (דהיינו, ערכאות) של עובדי כוכבים, אף על פי שדיניהם כדיני ישראל, אי אתה רשאי להיזקק להם, שנאמר, ואלה המשפטים אשר תשים לפניהם, לפניהם ולא לפני עובדי כוכבים." ובמדרש תנחומא פרשת מפשטים סי' ג', וז"ל: "שכל מי שמניח דייני ישראל והולך לפני עכו״ם כפר בהקדוש ברוך הוא תחלה ואחרי כן כפר בתורה שנאמר (דברים לב) כי לא כצורנו צורם ואויבינו פלילים (ורש"י עה״ת כנראה שילב שתי המובאות כאחת, עיי פירושו ל"ואלה המשפטים").להלכה מובא דין זה בשני מקומות בשו"ע. בחו"מ סי' כ"ו סעי א' כותב המחבר, ח"ל: "אסור לדון בפני דייני עכו״ם ובערכאות שלהם, פירוש מושב הקבוע לשרים לדון בו, אפילו בדין שדנים כדיני ישראל ואפילו נתרצו ב' בעלי דינים לדון בפניהם אסור, וכל הבא לידון בפניהם הרי זה רשע, וכאילו חרף וגדף והרים יד בתורת מרע"ה." וברמ״א שם, וזייל: "ויש ביד בית דין לנדותו ולחרימו עד שיסלק יד עכו״ם מעל חבירו... וכן מחרימין המחזיק ביד ההולך לפני עכו"ם... ואפילו אינו דן לפני עכו"ם רק שכפוהו ע"י עכו״ם שיעמוד עמו לדין ישראל ראוי למתחו על העמוד." וביו"ד סי' …

Judaism teaches that man, created in God's image, possesses an inviolate core of personality! and, that privacy constitutes the protection of this personality core from the encroachments of society and government. The Bible teaches the value of privacy. Man's moral nature is linked to the repudiation of any violations of human privacy. In the Halakhah, the right of privacy was legally secured in a manner even more advanced than that which prevails in contemporary Constitutional law, nonphysical intrusion was considered the equivalent of actual trespass. In Judaism, privacy is more than a legal right. There is a compelling moral duty for man to protect his own privacy. As concealment is an aspect of divine privacy, so is it the expression of human privacy.Man's inalienable right to privacy, however, has been eroded in contemporary society. Spectacular advances in Technology have enabled governmental agencies to achieve surveillance capabilities undreamed only a few years ago. Innovations in electronic and photographic techniques have made possible the collection of vast amounts of data on the day to day activities of all citizens, without so much as an inkling that the data collection is occurring. Innovations in computer technology have made possible the storage, retrieval and dissemination of personal dossiers on millions of Americans.A very great danger to the traditional American right of privacy now exists. Governmental encroachment upon the individual's constitutional right of freedom from surveillance needs to be checked lest our libertarian heritage be destroyed. A libertarian, democratic society cannot exist unless its citizens are encouraged to act free from an all-encompassing sense of being observed and recorded. A free society cannot survive in an atmosphere where the government assumes the big brother—scrutinizing the behavior of freedom. It has a chilling effect, a capacity for instilling fear and sheep like conformity in its citizens, the characteris…