Positive Freedom and the Law [1 ed.] 0367137860, 9780367137861

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Table of Contents
Preface
Glossary of Hebrew Terms (in Transliteration)
Introduction
Chapter Outline
Concepts Defined
Positive and Negative Freedom
Liberalism and Perfectionism
Kantian Theory and Jewish Thought
Morals and Ethics
Self and Other
Expression and Communication
Jewish and Democratic Values
Law and Morality
Notes
PART I: Freedom and Obligation
1. Kantian Theory and Jewish Thought: The Encounter Between Them
I Kant and Judaism
II Judaism and Kant in Accord
III Conclusion
Notes
2. Autonomy as Obligation: Kant and Traditions of Positive Freedom
I Pre-Kantian Positive Freedom
II Kantian Autonomy and Universal Law
III Post-Kantian Positive Freedom
IV Where to Take Kantian Positive Freedom from Here
IV Conclusion
Notes
3. Obligation as Freedom: Jewish Thought
I Judaism and Obligation
II Judaism and Freedom
III Conclusion
Notes
4. Dignity, Respect and Expression
I Dignity
II Respect
III Ethics of Communication
IV Conclusion
Notes
PART II: Positive Freedom in Expression
Introduction
A. Law and Morality
B. Effect on Civil Society
C. Effect on Legal Discourse
D. Right and Duty in Law
E. Expression
Notes
5. Authors’ Rights and Duties
I Expression Model
II Kantian and Jewish Thought
III Copyright as Positive Freedom
IV Conclusion
Notes
6. Women’s Prayer in Jerusalem
I Jewish and Democratic State of Israel
II Ethics of Communication in Israel
III Women of the Wall
IV Conclusion
Notes
Concluding Remarks
Index

Citation preview

Positive Freedom and the Law

This book explains why we should stop thinking of freedom as limited to a right to be left alone. It explores how Kantian philosophy and Jewish thought instead give rise to a concept of positive freedom. At heart, freedom is inextricably linked to the obligation to respect the autonomy and dignity of others. Freedom thus requires relationships with others and provides an important source of meaning in liberal democratic societies. While individualism is said to foster detachment, positive freedom fosters relations. Moving from moral theory to law, duties are seen as intrinsic to rights. The book considers test cases involving the law of expression, regarding authorial rights and women’s prayer at Jerusalem’s holy site of the Western Wall. Affirmative duties of respect are essential. Rights held by copyright owners require that all authors – including so-called users – are shown respect. Moreover, rights held by the authorities at the Western Wall require that all worshippers – including those whose interpretation of Jewish law differs from that adopted by the authorities – are respected. Kim Treiger-Bar-Am is a legal academic in Israel. Her education began at Yale University in philosophy and then law, with masters and doctoral studies in law at the University of Oxford. Her main research and teaching interests extend to freespeech theory and doctrine, and the juncture between speech rights and rights of authors and artists under copyright. Treiger-Bar-Am has published widely and lectured in the United States, Israel, Denmark and England.

Positive Freedom and the Law

Kim Treiger-Bar-Am

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Kim Treiger-Bar-Am The right of Kim Treiger-Bar-Am to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-13786-1 (hbk) ISBN: 978-0-429-27666-8 (ebk) Typeset in Galliard by Taylor & Francis Books

Contents

Preface Glossary of Hebrew Terms (in Transliteration) Introduction

vi ix 1

PART I

Freedom and Obligation

13

1

Kantian Theory and Jewish Thought: The Encounter Between Them

15

2

Autonomy as Obligation: Kant and Traditions of Positive Freedom

43

3

Obligation as Freedom: Jewish Thought

67

4

Dignity, Respect and Expression

96

PART II

Positive Freedom in Expression

141

Introduction

143

5

Authors’ Rights and Duties

166

6

Women’s Prayer in Jerusalem

199 225

Concluding Remarks

Index

228

Preface

Today, everything is about freedom. It is the negative freedom from interference that takes center stage. Yet negative freedom and rights sometimes paint the individual as isolated and alone. There is said to be a yearning for meaning, through connection with something beyond the self. The inadequacies associated with freedom may be corrected when looking back to the roots of the concept. I aim to recall the tradition of positive freedom: the freedom to. Here at issue is the freedom to take on the moral law, and its foundational canon of the duty to respect others. A shift is proposed towards embrace of the duty of respect as a central value in society. It is the essence of freedom. To explore the concept of freedom, two structures of thought grounding it are in view: the philosophy of Immanuel Kant and Jewish thought. A great disparity is often thought to stand between them, as Kant relies on reason to determine right action and presumes Judaism to accept divine command as authoritative. Yet here a fundamental commonality between the two schools of thought is shown. For both, autonomy and freedom are at their essence identified with obligation. A principle for both is the duty of respect. The nature of that respect is affirmative. An added significance of the concept of freedom is lent by Jewish thought: the duties of respect that arise from obligation envelope the individual in rich relations of respect with others. Even in the current age of globalization, relations are present and to be strengthened. Legal norms follow. I hope to show how the conception of the obligation of respect at the heart of freedom in moral philosophy can affect our understanding of rights. As freedom embodies obligation, so too do rights embody duties of respect. Duties are not only external limits to rights, but are intrinsic to them. This conception may affect civil society as well as the law. Understanding freedom as encapsulating duties of respect may ease tensions facing democratic liberalism. Liberalism is said to foster extreme forms of individualism, and to be incapable of accounting for our social nature and sense of belonging. The self is deemed disconnected from community and historical frame. Yet Kantian theory and Jewish thought teach that freedom is of the individual and also bounds that individual to the community or society. They envision both self as well as other, individual and community, particular and universal. An age-old Talmudic aphorism resonates: “If I

Preface

vii

am not for myself, who will be? But if I am only for myself, what am I?” One is to be responsible to oneself and also to the collective. A stark dichotomy is often posed between right and duty. I argue neither for the return of duty from an age-long past, nor for a decline of the primacy of freedom and rights. The belief in freedom today is strong. It must remain so. The conception put forward here retains the centrality of freedom in our social understanding of human nature. Yet individual freedom must be understood to encompass duty. Duty lies within freedom, rather than externally to it. My call is for human freedom to be seen to entail a duty of respect for the freedom of others. Supplementing liberalism’s focus on one’s rights is the duty to others that is intrinsic to rights. Religion too can be understood not as a realm only of duty, but of rights as well. Acknowledging the necessity of duties of respect that adjoin freedom may help to calm the dissension in Israel between the values of democratic liberalism and Judaism. Those values should be seen to cohere. In addition to a shift in discourse, a change may be brought about in practice. Philosophical ideas have power. The impact on norms of expression in culture and law is explored. Two test cases are put forward, to judge how the law might reflect an ethic arising from the Kantian and Jewish concept of freedom. Rights and duties of respect are in view. The first example regards authorial expression in the law of copyright. The second situation involves expression in the Jewish and democratic State of Israel: how should the prayer of women at Jerusalem’s Western Wall be treated? Kantian and Jewish ethics of communication are applied to these occasions of discord. The constitutional definition of the State of Israel as the Jewish and democratic state is to be followed with care. An effect may also be felt in personal lives. The flattening of meaning in contemporary society has been attributed to freedom’s indicating only self and not other. Expanding the concept of freedom to include duties of respect to others, and relationships of respect with those others, may bring an enhancement of meaning. This book is a philosophical journey as well as a personal one. I was raised with a commitment to both liberalism and the Jewish people, and trained intellectually in both spheres. Later I immigrated to Israel to participate in Jewish renewal. I have witnessed in the United States the drawbacks of a tradition of liberalism where attention to individual rights leads to the receding of attention to community and the other. A reorientation to understanding individual rights as coming together with duties of respect to others is due. In Israel, I have witnessed conflict in today’s religious and democratic society. By emphasizing the similarities between democratic and Jewish values, I hope to contribute to a resolution of the unease apparent between them. Applying the principle that freedom comes with duty, my personal freedom comes joined with my duty to speak out on these issues. My appreciation is extended to colleagues, friends and family for both their intellectual and emotional support in developing the ideas and analysis of this book. I am indebted to my parents for infusing in me the concern for the

viii Preface traditions explored here. I am proud of my daughters, Maital and Naomi, who embrace the values of freedom and respect. I am grateful to Miki for building with me a home and family where these values are steadfast, and for his unfailing confidence in this project.

Glossary of Hebrew Terms (in Transliteration)

Aher ahrayut Akedah Chochma Chochmat lev Darkhei noam

Davar Din Emet Gemilut hasadim Halacha Harut Hasidic Herut Hesed Hevruta Hineni Kavanah Kaved Kavod habriyot Kavod Knesset Lishmah Mashmaout Midrash – Midrashim (plural) Mishnah

the other responsibility binding of Isaac wisdom wisdom of the heart equitable principle in rabbinic law signifying paths of peace (principles which include: fairness [yosher], justice [tzedek], mercy [hesed], goodness [tov], peace and good will [shalom]) word; deed judgment in law (justice [tzedek] is made of din and rahamim) truth acts of loving kindness rabbinic law engraved of the spiritual religious movement Hasidism liberty mercy fellowship I am here mindset weight honor of the creatures dignity; respect Israeli Parliament for its own sake meaning

interpretive narrative(s) early Rabbinic commentary incorporated into the Talmud

x

Glossary of Hebrew Terms (in Transliteration)

Mitzvah – Mitzvoth (plural) Pirkei Avot Rahamim Rambam Ramban Shema Sinai Tallit Talmud Tefillin Teiva Tikkun olam Torah Tzedaka Tzedek Tzivui Zelem

commandment(s) Mishnah – Ethics of the Fathers compassion Jewish scholar Maimonides Jewish scholar Nahmanides hear Mount Sinai, where the Bible was revealed; the revelation event itself prayer shawl Rabbinic commentary 3rd–5th century phylacteries (ritual object) ark; word repair of the world Bible (Old Testament) charity (an element of tzedek) justice (consisting of din and rahamim) command image

Phrases Bezelem Elokim in the image of God Lo bashamayim hee not in the heavens Naaseh venishma do and hear; do and give meaning

Abbreviations BT CA CC Deut. HCJ Levit. R.

Babylonian Talmud Civil Appeal Civil Case Deuteronomy High Court of Justice Leviticus Rabbi

Introduction

A central value in democratic liberalism is freedom. How ought it to be understood? Freedom is often considered to be negative freedom from interference. Yet there is an age-old conception of positive freedom as the freedom to, including to take on the moral law. While we are free to determine it, the moral law also obligates us because it is the law and because it is moral. Positive freedom calls for obligation. Since a fundamental precept of the moral law is respect for the other, at the heart of positive freedom is the duty of respect. Two theoretical structures grounding democratic liberalism are examined: the philosophy of Immanuel Kant and Jewish thought. For both, freedom is ineluctably tied to obligation. Kantian autonomy is the capacity to fulfill obligations. In Jewish thought, freedom enables taking on obligations and interpreting them, and it is from obligations that freedom emanates. According to Kant and Jewish thought, the obligation at the heart of freedom gives rise to relational duties of respect. This conception may guide us further as to where the contemporary concept of freedom should be extended, namely with freedom understood as the obligation of respect. A normative argument is put forward. Discussion then moves from theory to praxis. Practical effects of conceiving freedom as the obligation of respect are explored. In law, rights and duties are to be understood in a relation similar to that between freedom and obligation. Upon a positive view of freedom, duty is not only correlative to right, but is also intrinsically a part of right. Ramifications of this conception are examined with regard to expression, and upon the ethic of communication that comes forward. Intrinsic to the right of free speech is the duty of respect for speech and speakers. The test cases examined are the expression of authors, and of women in prayer in the Jewish and democratic State of Israel. These issues are to be viewed in the broader framework of ethical behavior regarding speech. Positive freedom requires positive rights and duties of affirmative respect.

Chapter Outline The first chapter of the book aims to legitimize the analysis of Kantian philosophy and Jewish thought alongside each other, even while they are often deemed to be in opposition. Points of presumed conflict and accord between Kantian theory and

2 Introduction Jewish thought are indicated. Three purported conflicts are assessed: universality v particularity, reason v faith and autonomy v heteronomy. Elements in common between Kant and Judaism in these areas are in view. Discussion is then focused on the central similarity I see between them, regarding the relation of freedom to obligation. Chapter 2 examines the Kantian concept of autonomy, the essence of which is obligation. Autonomy is rational self-legislation, upon which the individual may legislate only those maxims which others may legislate as well. Autonomy engenders the duty to act on universalizable imperatives. It requires respect for the autonomous being, yet also requires that respect be offered by the autonomous agent for others’ autonomy and dignity. I have termed Kantian autonomy an ethic of care. Kant’s notion of positive freedom enabling moral perfection has roots in classical doctrines, and has been developed by philosophers through modern times. Chapter 3 shows Jewish thought to adopt a similar view of freedom and obligation to the moral law. In Jewish sources the equation may be said to be in the reverse: while for Kant autonomy is obligation, in Judaism freedom enables obligation, which in turn fosters freedom. Other reversals are found as well, for instance regarding the order or direction of the relationship between reason, morality and divine command. Yet for both Kant and in Judaism, freedom and obligation are linked at their essence. The paradigms explored in this light are the obligation to God’s command of the binding of Isaac and to the Sinaitic Covenant. The broad freedom afforded in Jewish thought is then reviewed, and obligation is seen embedded in it. A unique perspective lent by Jewish thought to the concept of freedom is that obligation promotes freedom. Chapter 4 examines the duty of respect that arises from obligation, in both Kantian and Jewish thought. Just as obligation is intrinsic to freedom, so too respect is intrinsic to dignity. From dignity arises both one’s right of respect, and also one’s duty to show respect for the freedom and dignity of others. The age-old roots of the concept of relations required by respect are in view. Today relations of respect may be global, arising from social networks. Positive freedom envisions a positive notion of respect. The relational duty of respect is affirmative, requiring intentional behavior as well as concern displayed in emotions such as compassion. Kantian theory highlights the necessity of considering others, and the richness of relations comes forward in Jewish thought. Expression is elaborated in this purview: an ethic of communication is put forward by both Kant and Judaism. I submit that the modern-day concept of autonomy of expression can be traced to Kantian roots. It too ought to be understood to entail obligation, and require duties of respect. Also in Jewish tradition, numerous ethical guidelines surround freedom and obligation regarding expression. The requirements of that ethic are unfolded in Part II. Part II of the book looks to the ramifications for the law of the theoretical analysis of Part I. From freedom arise rights and from obligations arise duties, which may be affected in law. The Introduction to Part II inquires: what impact may be anticipated on legal discourse and civil society from the reconceptualization of rights as duties of respect? What are the effects on the law and culture

Introduction

3

regarding expression? Rights and duties of respect for the speaker and speech are proposed. While modern culture often takes right as about the self and duty as about the other, freedom is about both. Also, right may be conceptualized as about both. With obligation at the essence of freedom, and duty at the essence of right, right and duty come together. Upon the duty to respect the other, the individual is perceived to be attached and cognizant of a common good. In addition to correlativity, an intrinsic relation ensues. Rights are correlative to duties, and hence limited by the need to respect the rights of the other party. Yet in addition right is, at its essence, duty. In this sense duty does not limit right, but constitutes right. One entity is not limited by another, but the first is itself constituted by the other. An individual’s right is not only the right to be let alone; is constituted and indeed magnified by the duty of respect that is intrinsic to it. Chapter 5 explores authorial expression. A model of expression to characterize copyright is proposed. The rights of expression of authors designated by copyright doctrine ought to be understood to imply duties of respect. Economic rights are in view, and a moral philosophy of moral rights is put forward. Positive freedom in light of Kantian and Jewish thought promote an ethic of communication for authors. In addition to their rights, authors – all authors, including so-called users and modifiers – are to be respected. The rights and defenses of all authors are considered, as well as the duty to respect the right of fair use. Chapter 6 proposes that the coherence of Kantian and Jewish thought may ease tension between the Jewish and democratic values of the State of Israel. At issue is the debate regarding women’s prayer services at the holy site in Jerusalem known as the Western Wall. I argue for the women’s right of expression, as well as the respect they are owed. Other worshippers and the authorities in control of events at the Western Wall bear duties of respect. A pluralism of voices is to be heard. It is not relativism that is put forward. Neutrality between all views is required neither by Jewish nor democratic values. The pluralism which those values promote demands respect for the women worshippers. Concluding remarks recall obligation as the essence of freedom. It is proposed that the understanding of rights as entailing duties of respect for others may lend meaning to the model of democratic liberalism. It also strengthens the view of accord between Kantian and Jewish thought, as well as between Jewish and democratic values in Israel. Along with rights of expression, the duty of respect for expression is to be fulfilled.

Concepts Defined The terms and concepts or conceptions used throughout the study are here set forth. Positive and Negative Freedom Liberalism and Perfectionism Kantian Theory and Jewish Thought

4 Introduction Morals and Ethics Self and Other Expression and Communication Jewish and Democratic Values Law and Morality

Positive and Negative Freedom Isaiah Berlin famously praiseds negative liberty from state interference and contrasted it with positive liberty to. Wesley Hohfeld’s scheme also defines liberty in the negative: liberty is correlative to a non-right, namely one has liberty to do something if no one else has a right to prevent it. Yet the conception of negative liberty “suggests that we would simply value the absence of obstacles without valuing what may positively exist and thrive in the space that is left when the obstacles are cleared away.”1 In addition to negative liberty, the conception of positive freedom as a right to achieve a good is defined and developed throughout this study. The positive aspect of freedom can be understood in the sense of the freedom to legislate or actualize the moral law. A conception bearing similarities with positive freedom was taken up in classical Greece upon the notion of the development of one’s virtues, and later one’s excellences. Today, it is widely held that one must be allowed to develop one’s own nature, and to realize oneself. This sense of positive freedom recalls the Kantian and Jewish aim of the development of one’s intellectual capacities or potentialities, towards actualization of the moral law. In Kantian theory and Jewish thought, positive freedom entails the capacity to respect that moral law. On a definition of negative liberty, respect can be understood in the negative sense of what one is not to do. It is often presumed to demand the absence of degrading or humiliating the other. Yet the positive sense of freedom accompanies a positive sense of respect, termed here affirmative respect. The conception of positive freedom is, in this study, defended against a Berlinian critique, insofar as it is shown to stand together with liberty in the sense of non-coercion. It is seen that the perfectionist striving towards a good and a telos of respect have been shown by many thinkers (both ancient and modern) to be consistent with the notion of Right, and negative liberty. Coercion is envisioned neither by Kant nor in Jewish thought for the achievement of the Good: autonomy in the kingdom of ends is an ideal for Kant, and in Jewish thought humans are never considered able to be perfect (or to reach God), but will always be in process of becoming holy.

Liberalism and Perfectionism Liberty is at the heart of the moral philosophy of liberalism. Neither liberalism’s political philosophy nor politics (regarding the welfare state) is at issue in this study, but the moral theory grounding liberalism. Perfectionist ethical theories

Introduction

5

hold that there are some human qualities that constitute human perfection and excellence, and that it is an essential interest of human beings to develop these qualities. While liberalism is presumed to advocate negative liberty, and positive freedom to promote perfectionism, the distinction is too stark. The two can stand together. From the time of classical liberalism, thinkers supporting liberal perfectionism have put forward the idea of autonomy as a good and as part of the good life. Kantian autonomy underscores individual liberty, as well as perfectionism. Also, Jewish thought embodies both of these elements. Insofar as a perfectionist goal may be set along with the affirmation of individual liberty, liberalism’s neutrality proves unnecessary. The joining of Right and Good follows, as well as deontology and teleology. (a) Right and Good Liberalism is identified with the Right, namely a rule or principle. Liberalism takes the view that each individual has the Right to subjectively determine their own Good. Perfectionism is identified with the defining of the Good, and the aim to achieve it. Yet classical liberalism took a view of the good of each individual, and the common good indicating values shared in society. The Right is a Good, and an essential part of the good life. While the Kantian conception of autonomy has been identified with the Right rather than the Good, for Kant the right is the good will. Also in Judaism, the right and good come together, as the Bible instructs humanity to do “that which is good and right in the eyes of the Lord thy God” (Deuteronomy [“Deut.”] 12:28). The distinction between Right and Good may be related to the distinction between right and duty. Rights are to be exercised responsibly, and with rights come duties. The duty at the essence of right is the duty of respect for the autonomy of the other. It is not suggested that duties replace rights, yet that rights, which are to remain strong, are shown to encompass duties within them. Also related is the distinction between morals and ethics as those terms are used here (as defined below), with morals as the principle of right and duty, and ethics as the good of respectful relations with others. Morals and ethics are seen to function together. (b) Deontology and Teleology Liberalism and the Right are considered deontological, while perfectionism and the Good are deemed teleological. Deontological ethics evaluate the rightness or wrongness of actions based on rules, regardless of their outcome. In contrast, teleology is pursuit of an aim – a telos. While deontology is associated with principles and the right thing to do, its meaning in Greek is duty. Ethical rules bind people to their duty, and deontological ethics are hence duty-based. A right deemed deontological sets the goal of fulfillment of the duty; teleology follows.

6 Introduction Liberalism is also teleological. While concerned with rights, liberalism defines a telos. Moreover, according to “neutral” conceptions of democratic liberalism, the state is to abstain from evaluating the Good, leaving it open to individual interpretation. Yet in accordance with the theoretical grounding of perfectionist liberalism, liberalism may define a Good, and presume a telos to target: namely, liberty. Liberalism is open to numerous views of the Good, and hence is pluralistic; it need not be neutral between them, nor take a relativistic view in presuming the equality of all views. Liberty remains the bottom line. Kantian theory and Jewish thought embrace notions both deontological and teleological. While theorizing the Right, Kant writes with a sense of teleological pursuit of perfection, namely the actualization of humanity’s essence in reason. Kant poses the kingdom of ends as an ideal. Jewish thought sets the individual and society on a teleological project to bring holiness to earth, and to repair the world. Positive freedom is both deontological and teleological. Freedom and rights foster liberty. Also, duty – the essence of positive freedom – demands respect for the autonomy and dignity of the other. Right and duty have a telos. Positive freedom is both a deontological right and in pursuit of a good insofar as its essence is the duty of respect. Deontology and teleology can be understood to work together. The distinction between deontology and teleology impacts the analysis regarding the freedom of expression. Among the rationales justifying the freedom of expression, the deontological autonomy rationale most clearly relates to the rights and duties of respect and dignity. The rationales of democracy and truth support the pluralism that freedom demands, and each aims towards a telos. Also the contrasting models of copyright regard the deontological authors’ rights model and the consequentialist incentive model. Again, deontology and teleology function alongside each other.

Kantian Theory and Jewish Thought Kantian theory spans many subjects, and Kant’s own thought developed over time. Kantian moral and ethical theory is in view, specifically regarding the concept of autonomy. How Kantian concepts have been used and interpreted in contemporary debate is at issue. The political and legal theories of Kantian philosophy are not engaged. Kant’s theory of rights is referenced but not treated extensively. The elements of Jewish thought under inquiry derive from the Bible, as well as musings from Talmudic times and on. Scholarship by community rabbis and scholars is included. Also, aspects of Jewish law are considered; I underscore however that I do not here pose an argument under Jewish law. A small number of works of Jewish philosophy are explored, regarding the ethics of communication. Philosophy has been identified as Jewish “by virtue of a transhistorical primacy of ethics.”2 Judaism embodies no dogma, and it entails extensive discussion and debate. No intellectual monolith of Jewish thought and culture is presumed in this study. Nor

Introduction

7

is the practice of Judaism uniform. Throughout the ages, local customs differed for Jews living in different areas in Israel and in different parts of the world. Varying Jewish sects and movements were also apparent from the early days of Jewish history, as well as in modern times. I do not attempt to justify Kantian or Jewish thought, but present principles from both which ground the notions of freedom. The view I present of both Kantian and Jewish thought supports the values of freedom (and dignity, justice and equality) central in democratic liberalism. Kant theorizes that freedom is our capacity to legislate the moral law; Judaism teaches that we are free to interpret and actualize it, and that freedom arises from it. The moral law obligates us, and centrally presents the duty of respect. Positive freedom can be taken to illuminate the nature of freedom: while democratic liberalism is sometimes taken to focus on rights, those rights are to be understood as requiring respect of the freedom and dignity of others. Kant writes that a reader may understand an author even better than the author understands himself;3 as readers of Kant and Jewish thought, we may interpret the lessons of their teachings. Nor do I attempt to inculcate Kantian theory or Jewish thought into law and society. While I agree with Lenn Goodman’s claim that religious thought reinforces and sustains liberal values,4 I do not see religion as necessary for a liberal society. I do not call for governmental support of religion; the threats of government coercion of which Berlin warn may be raised by Goodman’s argument that a “good government will foster religious thought and expression and promote metaphysical conversation and inquiry.”5 Moreover, I believe that freedom offers meaning in societies pursuing the tradition of democratic liberalism; I do not share Menachem Mautner’s view that a competition is necessary between religious and liberal values.6 The substance of the value of freedom can be strengthened where it is conceived as in relation to the duty of respect. The argument presented is not a religious one. The sources referenced to Kant’s works are in the Cambridge University Press edition, unless otherwise indicated. In the original of both Kantian and traditional Jewish materials, references are masculine, and are interpreted to apply to humankind of all genders. For Jewish sources, biblical translations are generally from the Jewish Publication Society (JPS), with some alterations. The Talmud discussed is the Babylonian Talmud (“BT,” followed by the name of the tractate), except where it is indicated that the Jerusalem Talmud is referenced. The title “Rabbi” is abbreviated or omitted when referring to a Talmudic commentator or the author of a scholarly work. It is to be noted that translations of many Israeli Supreme Court cases may be found in the Israel Law Reports or Cardozo University Versa project.

Morals and Ethics Midway through the study, discussion moves from morals (as an inner code) to ethics, taking a view of ethical behavior. My use of these terms signifies internal and external elements: “morals” regarding universal dictates of individual norms,

8 Introduction and “ethics” referring to external relations. “Moral” is used to indicate rules and principles, and “ethical” to refer to codes of conduct among people – how the moral code is borne out in relations. It is shown that the former includes the latter: freedom embodies obligations regarding the relations with others. Morality surrounds norms of right and wrong. We can be held accountable to those norms.7 The normative order is an obligatory one. Kant calls it the moral law. For Kant, moral rules are embedded in reason, which is not just good logic, but creates for rational agents “a deep rational commitment to some principle(s) of conduct as (rationally) binding.”8 Codes of behavior are widely accepted by societies; the term “moral” comes from the Latin mos and the Greek ethos, both with the meaning of custom or habit.9 Yet morality exists independently of social practice, and is seen as based on objective universal principles. Ethics can be deemed a subset of moral norms which govern behavior between individuals. Morals require ethical codes defining how one is to conduct oneself with respect to others. Central to modern ethical thought are “second-person notions, such as obligation and accountability.”10 Ethics is apparent in understanding the obligation of respect for others at the heart of freedom. It is the ethics of communication that are in focus – as supported in Jewish and Kantian thought, and in liberalism. Morality and ethics are interdependent. For the classical Greeks, living well meant taking a genuine interest in the lives of other people, and Kant brings ethics and morals together. Ronald Dworkin bemoans modern philosophy having abandoned that ideal of moral and ethical integrity, and calls for them to be united.11 My project bears similarity to Dworkin’s in this regard (even while my usage of the terms “ethical” and “moral” differ12). That integration begins with the concept of dignity. Analogous to the relation between morality and ethics is the relation between dignity and respect.13 While dignity is considered internal, respect is what is owed externally to others. That morality and ethics are to be integrated is similar to the integration necessary between dignity and respect. Jewish and Kantian thought teach that the dignity of one is constituted by the respect that one shows to another person.

Self and Other The self is characterized as the rational or expressive being; the will; the agent; the being with capacity for freedom. The shift in focus from morals to ethics moves discussion from the self to the other. In the earlier discussion of self – namely, of the individual’s freedom and right – the other was centrally presented as well. The self is attached to, and joined in, relations with other people, and the freedom of the self is in essence obligation to them. With discussion of ethics in the latter half of the book, the focus shifts to that other. Yet the import of the self does not diminish: liberty remains strong, and the identity and rights of the self are uncompromised. Both self and other are paramount in Kantian theory and Jewish thought, and in the concept of positive freedom.

Introduction

9

I argue against the call in postmodern scholarship for the self to be deconstructed. In any event we live it – even if theoretically the concept of the self has dissolved. Similar is the concept of autonomy: whether it is “true” or not, we live our lives on the basis of the Kantian concept of free will.14 Also the narrative of the self is the structure around which we live our lives.15 The self is to be respected, and is to respect the other. Just as freedom is inextricably tied to obligation, rights and duties cannot stand divided, dignity requires showing respect, and morals and ethics are to be integrated, the self and the other are to be taken together. For Kant and in Jewish thought, the self is in relation to the Other (God) and the moral law; as well as to other people. That relation is particularly pronounced in expression by the Jewish philosopher Martin Buber. Upon Buber’s ideal I–Thou relation, the ego is not renounced, but the self and other are interdependent. The essential relation between the I and Thou is dialogic: it relies on expression and communication.

Expression and Communication The self and other are also centrally placed in the law, and in the law of expression. The terms “expression” and “communication” cover much the same ground, but can be distinguished as follows: I generally use here “expression” to indicate the articulation of meaning through a message, for which an individual’s autonomy of expression and right of expression arise. Often where in the US the term “speech” is used, in the same contexts the term “expression” is used in the UK and Europe. I use “communication” regarding relations between people. Expression is discussed throughout the study, regarding conceptions of autonomy of expression in Kantian theory and modern-day liberalism, and the importance of openness towards expression in Jewish sources. The relation of expression and communication to dignity and respect is explored, and seen to yield an ethic of communication. That ethic grounds the law’s concern with both expression of the self and communication to the other. While free speech is often considered a strong right, and only a right, duties are to be recognized in association with it as well. As part of an ethic of communication, the right of free speech is to be acknowledged as well as the duty of respect towards, but also of, the speaker. That ethic is in view in particular with regard to authors and worshippers. The self is not deconstructed, and authors and worshippers retain rights: but alongside rights, and indeed rights of all authors and all worshippers, duties of respect towards people come to the fore.

Jewish and Democratic Values In the final chapter, the Jewish and democratic values of the State of Israel are at issue. The relationship between Kantian thought and democratic values is shown. The commonality of the Jewish and democratic values is closely akin to the commonality of Kantian theory and Jewish thought. Neither the history of the

10 Introduction founders of constitutional democracy looking to Kantian and Jewish principles, nor democratic theory in the Jewish tradition is at issue here; it is a theoretical commonality that is shown. Jewish and democratic values are abstracted until they are coherent; the concept of freedom is a prominent shared feature. The right and duty of respect for expression follow suit. The examination of the congruence of ideas within the Jewish tradition and outside of it is not an unusual effort. Jewish tradition accepts, uses and builds upon outside influences and thought. For instance, in the Middle Ages, the engagement of Judaism with philosophy and science that may seem foreign to it, was profound: Maimonides drew heavily from Aristotle and the Arab philosophers of his day. An example from an earlier period is the adoption of the style of dining and philosophizing of the Greek Symposium (and the “afikoman” following the meal, based on a Greek term and adopted into Hebrew), for the Jewish seder on the Passover holiday. The modern-day consonance of Jewish values set beside democratic ones recalls Jewish communities and Jewish thought living side by side non-Jews and other ideas in past ages. Israel is not a theocracy: rather than a religious state, it is a democratic state with a (minority) religious population. In current times secular Israelis allow the definition of Jewish values to be defined by the religious. The conception of freedom common to Jewish and democratic values, I submit, may be central to that definition. The particular issue in focus regards women’s prayer at the Western Wall in Jerusalem. Global movements of women’s equality may have a causal effect on the phenomenon. Yet I do not intend to imply that accepting the women’s practice requires openness to interpretations of Jewish law from outside of the tradition. The phenomenon reflects the pluralism that Judaism entails, from within. It is to be recalled that interpretations of the Bible and of Jewish law abound, with the Talmud recording open debates and opposing opinions. It is submitted that pluralism is a Jewish and democratic value.

Law and Morality Throughout Part II of the study, legal implications of the philosophical analysis in Part I are examined. I do not argue that law is coextensive with morality, but that there is a coherence between them, insofar as the law is meant to reflect principles the society has adopted as “right,” namely moral. In this sense the discussion is descriptive. Yet the argument is also normative. While I do not advocate the coercive enforcement of moral or ethical standards, and do not believe that they should govern the law, they should affect it. It is values rather than rules that are at issue. Values impact law and legal rights, and ethical values are to be acknowledged as taking on this function. The principles in view here may be used as a tool for interpreting law, as described in the Introduction to Part II. Normatively, values provide a moral justification for laws requiring respect. The principles supporting freedom and respect present in the law should be there. Law

Introduction

11

is to be used as an instrument to change behavior and social forms, and to internalize norms. The law is to promote what ought to be: law can bridge the gap between reality and our aspirations for society.16 The aim can be a society of liberty, and a society promoting the good life, or both – upon the view of liberal perfectionism. Indeed, Dworkin writes at the close of his final book that he no longer sees just the relation of law and morality, but law as morality. Law has effectively been integrated with morality.17 We can aspire for society to embrace duties of respect as much as it adopts freedom. The law will function as a bridge to this better society, insofar as courts, lawmakers and the public generally use tools of moral philosophy. As put forward in Kantian and Jewish thought, the essence of freedom is tied with obligation, and the core of dignity is respect. Those understandings can add meaning to a liberal democratic society.

Notes 1 Jeremy Waldron, “Autonomy and Perfectionism in Raz’s Morality of Freedom,” S Cal L Rev 1097 (1989) 1104 (liberty in the negative sense can seem “odd and empty”). 2 Steven S Schwarzschild, “Modern Jewish Philosophy” in Contemporary Jewish Religious Thought, eds Arthur Allen Cohen and Paul Mendes-Flohr (New York: Charles Scribner’s Sons, 1986) 629. The Bible and Talmud are sometimes viewed as philosophy. Yoram Hazony, The Philosophy of Hebrew Scripture (Cambridge: Cambridge UP, 2012); Jacob Neusner, Judaism as Philosophy: the Method and Message of the Mishnah (Eugene: Wipf and Stock, 2004) (previously published by Univ S Carolina, 1991). 3 Immanuel Kant, Critique of Pure Reason, trans & eds Paul Guyer and Allen W Wood (Cambridge: Cambridge UP, 1998) A314/B370. 4 Lenn E Goodman, Religious Pluralism and Values in the Public Sphere (New York: Cambridge UP, 2014) 156 (dignity and liberty are central to “Mosaic liberalism”), 127 (“biblical theism fosters a humanism that commends the Decalogue in universal terms”). 5 Ibid 101. Goodman calls for state sponsorship, and not direct control. Ibid 199. 6 Menachem Mautner, Human Flourishing, Liberal Theory, and the Arts (London: Routledge, 2018), in particular 158–60. 7 Stephen Darwall, Morality, Authority and Law: Essays in Second Personal Ethics (Oxford: Oxford UP, 2013) 7. The modern sense of morality as the “ought” – what is morally right or wrong – has been contrasted with the classical Greek ethic which takes the agent’s good – what brings happiness (eudaemonia) – to be the only ultimate source of normative obligation. Ibid 5–7 (following Anscombe and Sidgwick). 8 Thomas Hill, “The Kantian Conception of Autonomy” in The Inner Citadel: Essays on Individual Autonomy, ed John Christman (New York: Oxford UP, 1989) 99. 9 In earlier times morality was a particular concept related to social structure, while the modern sense of it is universal. Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Bloomsbury Academic, 1981) 123. 10 Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard UP, 2006) 119. 11 Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard UP, 2011) 19, 184 (Plato and Aristotle saw ethics and morality as together), 202 (connecting being good and living well). References herein to “Dworkin” are to Ronald Dworkin, unless otherwise stated. 12 Dworkin uses the terms in a “special” way, as he calls it: “Moral standards prescribe how we ought to treat others; ethical standards, how we ought to live ourselves.”

12 Introduction

13 14 15 16 17

Dworkin, Justice for Hedgehogs 191. Ethics regard what people should aim to be and achieve in their own lives. Ibid 25. The latter resembles the classical Greek notion of living the good life. Ibid 255, 272. RH Fallon, Jr, “Two Senses of Autonomy,” 46 Stan L Rev 875 (1994). J David Velleman, “The Self as Narrative” in Autonomy and the Challenges to Liberalism: New Essays, eds John Christman and Joel Anderson (Cambridge: Cambridge UP, 2005). Robert M Cover, “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative,” 97 Harv L Rev 4 (1983). Dworkin, Justice for Hedgehogs 414. Dworkin also writes that we must try our best to make our country’s law what our sense of justice would approve. Ibid 415.

Part I

Freedom and Obligation

1

Kantian Theory and Jewish Thought: The Encounter Between Them

In addition to the prevailing conception of freedom as negative liberty, namely non-interference, the age-old conception of positive freedom should be in view. Kantian theory and Jewish thought are part of that tradition. For both, at the essence of positive freedom is obligation and the duty of respect. Before those conceptions can be explored, it may be asked: is it legitimate to consider Kant and Judaism together? Commonalities in the thought and influence of both are shown to warrant their examination, one alongside the other. Among the founding theoretical influences of Western democratic liberalism are those of Kant and Judaism. Their imprint is strong in notions of freedom, justice and equality, as well as in the origins of many constitutional systems. The conception of positive freedom found in Kantian and Jewish thought has been developed also in modern liberal theory. Kantian philosophers and Jewish thinkers have valued each other’s works highly. Kant befriended and esteemed the thought of Moses Mendelssohn, and the review of Kant’s own works by Salomon ben Maimon. Jewish philosophers have praised Kant’s wisdom. In accordance with an instruction from rabbinic discourse in the ancient Talmud to acknowledge wisdom that God has imparted to all,1 a blessing was extended specifically to Kant: “Blessed be God, who has given of His wisdom to Kant.”2 Rabbinic scholars were open to learning from many fields.3 Yet a dilemma of modernity for religious thinkers is presented by the conflict between faith in a divine authority and in reasoned autonomy. Faith turns to divine command as the origin of morality, while Kantian and modern liberal thought turn to the autonomy of the individual: to the rational being for Kant, and to personal choice, today. There are said to be many areas of discord between Kantian philosophy and Jewish thought. Despite the presumed conflict between them, there is coherence. My purpose here is not to enter into a historical overview of relations between German and Jewish philosophers or influences between their theories, but to indicate points of purported conflict and accord between Kantian moral theory and Jewish thought. Nor do I aim to justify them, or to prove that either is right. Kant’s critiques of Judaism, which have generated centuries of debate, are expounded. Exploring the apparently disparate positions of the two structures of thought demonstrates that in fact they are in conformity with each other. Three

16 Freedom and Obligation aspects of the discord between liberalism and Jewish thought – put into focus in the debate between Kant and Judaism – are considered. Universality v particularity: Is Kantian autonomy a theory of universal application, and Judaism only with regard to one people? Both Kantian theory and Jewish thought are shown to bear elements both particular and universal. Moreover, the relationship they embrace between freedom and obligation can be taken as both a particular and a universal principle. Reason v faith: Is Kant’s focus on reason contradicted by a Jewish emphasis on faith? Both Kant and Judaism accept faith and reason. They understand obligation as derived from and consistent with reason. Autonomy v heteronomy: Does Kant’s theory that autonomy is in contrast with heteronomy, whereby an outside authority is in view, contravene Judaism? It is seen that Kantianism is not alone in supporting autonomy; Judaism entails autonomy, as well. Further, the Jewish notion of covenant is not necessarily one of heteronomy, but rather a partnership with God. In each of these areas, a coherence is apparent. Exploration of these areas also highlights and sharpens the similarity of the conceptions of freedom and duty in Kantian theory and Jewish thought. That commonality and the ramifications of it are developed throughout the book. Discussion here begins with Kant’s analysis of religion. The Kantian criticism of Judaism follows. The three areas of apparent discord are then considered, as well as what they can show us regarding our main inquiry: the relation of autonomy and obligation, freedom and duty.

I Kant and Judaism In his book Religion within the Limits of Reason Alone, Kant levels objections to the Church, and to all organized religions.4 Kant wants people to use their reason in religious matters, but claims that they are not free to do so because of external constraints – namely, the pressures of the Church.5 Kant seeks to put a check on things people say about God, such as presuming God’s contempt for human reason.6 Kant’s disagreement with Judaism derives from and resonates in Kant’s evaluation of religion. The assessment of Judaism must be viewed in that larger context. The examination begins, then, with what Kant’s book was trying to get at. In view are Kant’s aim against the Church and organized religion; the chastisement he faced and his response; Kant’s interest in a religion of reason and its difficulty, as well as his thought that in the future it will be reached; and Kant’s ultimate acceptance of religion and faith. Elements of Kantian and Jewish thought are then considered side by side. A. Kant and Religion In Religion within the Limits of Reason Alone, Kant argues against the organization of Christianity with a hierarchical church order. Kant favors religion based on reason,

Kantian Theory and Jewish Thought

17

even while acknowledging its limits. He comes to accept faith as well. Kant indicates the benefits of religion in leading toward morality and perfection of the self. Kant’s dissent is with all organized religions. Much has been written on Kant’s childhood education in the Collegium, where he disfavored its religious fanaticism.7 In Toward Perpetual Peace, Kant disparages differences of religion keeping peoples separate and unmixed. Kant writes a footnote that reads: Different religions: an odd expression! just as if one could also speak of different morals. There can indeed be historically different creeds, [to be found] not in religion but in the history of means used to promote it, which is the province of scholarship, and just as many different religious books (the Zendavesta, the Vedas, the Koran, and so forth) but there can be only one single religion holding for all human beings and in all times. Those can therefore contain nothing more than the vehicle of religion, what is contingent and can differ according to differences of time and place.8 Following the publication of his book, Religion within the Limits of Reason Alone, Kant received a reprimand in the name of the Prussian king, Friedrich Wilhelm II. The king had appointed the reactionary preacher Wollner as his spiritual adviser, and Wollner required approval by state censors before publication of any works dealing with religion. A harsh letter was sent to Kant threatening serious consequences should the offense be repeated. Kant pledged to refrain from all public statements on religion. Kant maintained that his pledge was to the king himself, and that he was released from it upon the king’s death in 1797.9 Kant’s interest is a religion based on reason, but his argument is an extensive one. The title of his book Religion within the Limits of Reason Alone makes his position apparent. Kant also writes in The Conflict of the Faculties: “Christianity is the Idea of religion, which must as such be based on reason.”10 Kant opposes accepting God’s word through any means other than reason. “The concept of God and even the conviction of his existence can be met only in reason” rather than inspiration or tidings communicated to us, “however great the authority behind them.”11 Further, Kant writes that intuition, immediate revelation, or whatever else one wants to call such a presentation, never proves the existence of a being whose concept … demands that it be of infinite magnitude … no one can first be convinced of the existence of a highest being through any intuition; rational faith must come first.12 Yet while Kant holds that the only means available are those of reason, he argues that the existence of God is not subject to proof. According to Kant, God can neither be proved nor disproved:13 neither the existence nor the nonexistence of God can be proved by reason. Kant criticizes attempts by philosophers of his time to prove the existence of God through metaphysical argument. According to Kant, the limits of human thought and knowledge preclude any such demonstration. Kant defends himself

18 Freedom and Obligation by insisting that his purpose is not to condemn Christianity but the religion of reason, for its speculative inadequacy. Theism is not provable. Reason cannot prove God, or obtain knowledge of the Divine. Kant defends his comments on the church insofar as he proves that the only way to get to God is through faith.14 But reason is superior to other grounds of explanation.15 Kant writes that the process eventually will succeed, with reason able to support religion: “at last the pure religion of reason will rule over all, ‘so that God may be all in all.’”16 For now, because of the limits of reason, it is “rational faith” that leads to religion. Kant writes: “I had to deny knowledge in order to make room for faith.”17 In addition to affirming rational faith, Kant does not preclude religious faith. Kant writes of God as the first cause. According to Kant, although it is not intellectually available to us in our theorizing about the world, people can float up to the level of the first cause, and at that level the effect must be ascribed to God alone.18 Kant calls religion “the recognition of all duties as divine commands.”19 Kant also takes the view that God is necessary for the moral system. Morality and moral obligation require as a presupposition and show that God and a noumenal world exist. Human beings have a duty to promote the highest good, which is the moral law, and the kingdom of God.20 The highest good cannot be presupposed without God. Therefore “it is morally necessary to assume the existence of God.”21 The needs of morality demand and justify faith in God’s existence.22 Kant holds religion to be beneficial. Religion adds to autonomous morality the belief that moral duties can be fulfilled, because the author of moral law is also the author of nature. Religion thus gives us hope,23 and keeps us happy.24 Religion is, further, an educational tool.25 The connection between Kant and religion might be even closer. In the later years of Kant’s life, Kant viewed religion and God in a new light. A manuscript left incomplete at his death known as the Opus Postumum suggests that Kant’s reflections in his final years may have drawn a connection between God and the categorical imperative – taking the categorical imperative as a divine command. According to Kant, God reveals Himself in morally practical reason and the categorical imperative.26 B. Kant’s Critique of Judaism While Kant’s argument is not against religion per se but against church structure, he also raises objections specifically to Judaism. Kant expressly delineates his objection to the Jewish religion when he calls it essentially political. I draw here three points from Kant’s dispute with Judaism.27 With the taming of these conflicts, the legitimacy of analyzing Kantian and Jewish thought together is enhanced. 1) Universality v Particularity In Religion within the Limits of Reason Alone, Kant calls Judaism essentially political and statutory rather than religious. Kant writes:

Kantian Theory and Jewish Thought

19

The Jewish faith, as originally established, was only a collection of merely statutory laws supporting a political state. … Strictly speaking Judaism is not a religion at all but simply the union of a number of individuals who, since they belonged to a particular stock, established themselves into a community under purely political laws.28 This presumption takes Judaism as the gathering together of a small number of people, in one communal group. It is a charge of particularism, whereas Kant poses his theory as universal. Kant expressly objects to Judaism’s particularism in not establishing a universal church, and denounces Judaism’s belief in its “sacred history.”29 Both Kantian theory and Jewish thought are shown below to involve aspects both particularistic and universal. Kant adds to his argument that Judaism is political a view of Judaism as focusing on external acts: all its commands are of a kind which a political organization can insist upon and lay down as coercive laws, since they relate merely to external acts. … With no claim on the moral disposition in following them …30 Kant’s rejection of Judaism’s association with “moral disposition” is refuted in the discussion below on moral reason, and Kant’s presumption that Jewish law relates “merely to external acts” is taken up in Chapter 4. 2) Reason v Faith Kant calls for a religion of reason. While Kant’s critical review is leveled at the Christian Church, a conflict can be presumed between Kant’s upholding of reason and Judaism’s upholding of faith. Yet both Kant and Judaism adopt both reason and faith. The notion of faith in revelation as obedience to an external authority relates to the final dispute explored here, that of autonomy v heteronomy.

3) Autonomy v Heteronomy Most centrally – or at least most often debated – Kant finds morally indefensible Judaism’s call to observance of an external authority. Kant views it unnecessary to link the voice of moral principles to an unknown authority, a veiled Isis – namely, an unknown God. Kant writes: The veiled goddess, before whom we … bend the knee, is the moral law in us in its inviolable majesty. We hearken to her voice, indeed, and also understand her command well enough; but in listening are in doubt whether it comes from man himself, out of the absolute authority of his own reason, or whether it proceeds from another being, whose nature is unknown to him, and which speaks to man through his own reason.31

20 Freedom and Obligation Kant is assumed to have been familiar with the writing of the well-known Jewish philosopher Baruch Spinoza (1632–1677),32 who put forward a similar assessment of Judaism.33 The divide between Kantianism and Judaism also on this score is shown to be not as stark as Kantian theory presumes it to be.

II Judaism and Kant in Accord Upon a close examination of Kant’s complaints, coherence between Kantian theory and Jewish thought in these areas can be determined. Each embrace both universality and particularity, as well as both reason and faith. As to the purported dispute on the basis of autonomy v heteronomy, Judaism entails a complex relationship between the two factors. A. Universality and Particularity Does liberalism rely on universalism – with Kantian theory at its base – in contrast with religion relying on a particularist view? The notions of universalism in Kantian thought and particularism in Jewish thought are said to pose a divide. Yet the discord is not so stark. Kantian theory entails both, as does Judaism. Like Kantian theory, Judaism too advances a strong notion of individuality and individual freedom, in addition to relying on universal reason and setting forth principles of universal ethics. Liberalism, too, allows both. The implications of Kantian autonomy undergird a strong individualistic bent. According to Kant the self is the source of autonomous decision-making. It is Kant’s offer of pure self-activity that awoke the modern aspiration to liberation.34 Kantian epistemology is also derived from the self, in that the forms of consciousness and understanding derive from the (abstract) human subject.35 Yet for Kant, individuality is twinned with universality. Reason is both individual and universal. According to Kant, the morally autonomous rational individual thinks and acts in accordance with universal reason. Because of human rationality, autonomy is a universal attribute of all people. Autonomy as the special gift of the super “man-god” is not Kant’s vision; all rational beings are autonomous. The universality of Kant’s theory has been and continues to be central in developing notions of equality.36 Kant’s theory is not destroyed by the paradox of individuality and universality. In the words of Lewis White Beck, this paradox is the nature of the human predicament.37 Nor does Kant ignore particularity: as Ernest Weinrib explains, for Kant the “principle of right allows the free will to realize itself in anything that is not already the locus of another free will.”38 Moreover, universalism means community. With the concept of universalism, “Kant had a sense of the community of all rational beings and … of all human kind. His rationalism effectively integrated … autonomy and community.”39 Kantian autonomy does not put forward an atomistic, solipsistic individual, but rather requires an individual’s consideration of the other. The ethical requirements of community in Kant’s theory of autonomy are discussed in Chapter 4.

Kantian Theory and Jewish Thought

21

Similar to Kantian theory, Jewish thought bears elements both particularistic and universalistic. Judaism is often labeled particularistic, as the Bible surrounds the building of the Jewish nation, and Jewish law shows concern for the care and well-being of the other in the Jewish community. Yet while Kant complained of Judaism’s focus on one people, Judaism also bears elements of a strong universalistic bent. Judaism’s view of justice pertains to Jewish society, but also “provided a starting point for the major Western lineages of universalism and humanism.”40 Judaism’s universalistic ethic begins with the Bible’s portrayal of the human created in the image of God. The Bible then applies universally the Noahide laws, namely the laws given after the flood to Noah and hence the world (Genesis 9:15), before the Covenant was made with Abraham and the Jewish people. Also the principles of justice set forth by the prophets are universal, and have served as a basis for liberal thought for many generations. Biblical quotes on universal justice from Isaiah and Ezekiel, for example, were repeated by founders of constitutional republics in the modern era. The universality of ethical values in the Bible was emphasized by many Jewish thinkers of the 19th century. In the 20th century, Albert Einstein famously spoke of the almost fanatical love of justice as one of the features of the Jewish tradition that made him thankful to belong to it. Also particularism is strong in the Jewish tradition. Yet particularity is not solipsistic individuality, but is related closely to community. While traditional Jewish sources treat the individual as prized, the notion of realization of the self is not that of the individual in isolation but in community.41 It is also tied with universality. Former UK Chief Rabbi Jonathan Sacks writes: “The universality of moral concern is not something we learn by being universal but by being particular.”42 The pursuit of universal goals while recalling his roots and deepening commitment to his own identity is described by Nathan Sharansky, using Cynthia Nozick’s metaphor: The shofar, the ram’s horn that is sounded in the synagogue on the High Holidays, is narrow at one end and wide at the other. Nothing happens if you blow into the wide end. But if you blow into the narrow end, the call of the shofar rings loud and true.43 Jewish particularism “is not metaphysically or epistemically isolated.”44 Judaism is particularity that promotes universalism, as Emmanuel Levinas has stated.45 This Jewish ethic reflects both the universal and the particular. God is depicted as being in covenant with the Jewish people as well as with all of humanity. The two names of God used in the Bible are said to reflect God’s particular and universal aspects. In relation with Abraham and Sarah and their descendants, in covenant with the Jewish people, God is referred to as “Yahweh” (YKVK). “Elohim” is the name of God embodying universal principles and the totality of the forces of nature.46 The concern shown by Kantian and Jewish visions for the individual, community, and universal humanity are evident throughout this book. Both are particular

22 Freedom and Obligation as well as universal. Kant is concerned with the particular, in supporting the autonomy of the individual, and the universal, insofar as the concept of moral autonomy is based on universal reason. Judaism is well known both as a particularistic ethic, showing concern for the community of Jews whether in a local area or worldwide, and also for upholding universal principles of justice and compassion. The relationship proposed in Kantian and Jewish thought between freedom and obligation is both a particular and universal one. The particularity and universality of Judaism and of Zionism are discussed in the book’s final chapter, with regard to Israel as both the Jewish and democratic state. B. Reason and Faith Kant’s assessment of Judaism is characterized as contrasting reason with faith and revelation. This is an inaccurate portrayal of Kant’s view, as Kant deemed reason and faith consistent, and also of Judaism, given the Jewish reliance on reason and its view of faith. Again with respect to this second presumed dichotomy, both Kant and Judaism embrace reason, as well as faith. 1) Reason The telos of positive freedom for Kant and in Jewish thought is the perfection of reason and the intellect.47 Yet reason and morality coincide. Kantian theory and Jewish thought aim towards achieving the moral law through reason. While for both Kant and Judaism the moral law is God’s law, as seen below, the focus here is the view of the moral law as the law of reason. What does Kant mean to be by reason? Kantian theory on autonomous rationality is developed more in Chapter 2, where also contemporary conceptions of autonomy as reason and as expression are reviewed. Here it will suffice to say that Kant articulates and develops throughout his moral theory an exact methodology of reason. This is apparent for instance in his critiques, Critique of Pure Reason, Critique of Practical Reason and Critique of Judgment. Kant’s view of reason can also be understood this way: [T]he rationality Kant is talking about has nothing to do with intelligence tests or mastery of technical subjects such as physics or metaphysics. He was convinced that every person has the rationality to see that it is wrong to treat other people in a manner inferior to the way you want to be treated …48 This Kantian view is not far from the Jewish approach. Jewish tradition relies heavily on reason. The wider question examined in this book regards freedom and obligation – and in Jewish thought, both are imbued with reason. The presence of reason is strong in the Jewish view of freedom. Spinoza has been placed in this line of thought: “before Spinoza, no Jew had argued for such a strong version of rational autonomy.”49 Moreover, the tradition deems Jews to be under an obligation to reason wisely.50 The esteemed commentator Moshe ben Maimon or

Kantian Theory and Jewish Thought

23

Maimonides, known by the acronym Rambam (1135–1204), put forward that reason is our capacity for fulfilling the Covenant: the only way to fully satisfy the obligation to know God is by engaging in independent human reasoning.51 Reason is fundamental in further aspects of Jewish thought. Each aspect is similar to Kantian theory. It is seen that first, reason is Jewish thought’s strong methodology. Second, reason reflects inner human nature. Third, in Judaism reason is taken to be in a necessary relation with ethics, justice and morality. The discussion of reason is followed by a discussion of faith, which does not contradict it; rather, the two forces can work together. In each of these areas, the accord between Kantian theory and Jewish thought comes forward. A. METHODOLOGY

Reason has long been the pervasive methodology utilized in Jewish thought, from the Bible and on.52 The place of reason in Judaism has been highlighted by Jewish thinkers as early as Philo in the first century. In the 10th century, for Saadia ben Joseph (known as Saadia Gaon), it is God’s command to engage in a reasoned inquiry of the Bible and the laws.53 Also Solomon ben Isaac, the well-known 11th-century Bible commentator known as Rashi (1040–1105), and Maimonides, use a reasoned method. According to Maimonides, even prophetic visions come through the intellect.54 The revered modern Jewish philosopher, Joseph Soloveitchik, looks to a world “of creative intellect, of pure reason and clear cognition.”55 Modern thinkers make express efforts to harmonize Judaism with Kant’s view of reason. B. INNER NATURE

The intellect is the touchstone of the creation of the human in the image of God (bezelem), thought to include reason and the capacity to understand and discern.56 The individual mind is connected intellectually with the transcendent Active Intellect.57 Having an intellect in actu approaches seeing God: it means establishing unity with the Active Intellect.58 Rationality is thus the bond between humans and God.59 The Maimonidean view is similar to Kant’s, yet differs from it. Kant takes his predecessors to assume too passive a role for the human intellect: Ancient philosophers were quite mistaken in the role they assigned to the human being in the world, since they considered him a machine within it, entirely dependent upon the world or on external things and circumstances, and so made him an all but passive part of the world.60 In contrast, Kant believes, the critique of reason assigns man a “thoroughly active existence in the world”: all of his representations and concepts are purely his works.61 In comparing Maimonides and Kant, Kenneth Seeskin writes:

24 Freedom and Obligation From Kant’s perspective, Maimonides’ intellect in actu is still too passive because it does not take into account what the mind contributes to experience to make it intelligible. … Although it is not clear what Kant means by “ancient,” there is little doubt his remarks apply to Maimonides. No matter what Maimonides says about the intellect in actu, it is not … [autonomous] in the sense in which a modern philosopher like Descartes or Kant understands the term.62 Yet the view of human rationality in Jewish thought allows the individual to abide by God’s laws, without heteronomy. God’s laws are not ways of submitting to the will of another, but of recognizing the implications of one’s own rationality.63 The bond between the human intellect in actu and the Divine Active Intellect can be considered to overcome the autonomy v heteronomy dichotomy examined further below. According to Maimonides, the active intellect is the highest form of perfection for each human.64 Perfection is to be on an intellectual as well as a moral plane.65 The exploration of reason’s relation to morality follows. C. MORALITY

For both Kant and Judaism, reason and morality are in accord: for Kant, reason and morality and universal law, and in Judaism, reason and morality and God’s law. Kant deems universal autonomous rationality to aim towards – or rather constitute – morality. In Judaism, reason is taken to accord with divine law, which is deemed to bring us to justice in society and perfection of the individual.66 The question arises: is God’s command above moral reason, or within its structure and subject to it? Jewish thought makes a clear link between reason and the right thing to do. According to Maimonides, what is ethically required is also rationally intelligible.67 The statement “God forbid that anything in the Torah should contradict reason” by Judah Halevi (1075–1141), a poet, philosopher, doctor, and leader of Spanish Jewry in his time, is placed side by side with the insight guiding the Talmudic sages: “God forbid that any application of the Torah to life should contradict the principle of ethics.”68 Contemporary Jewish thinkers portray reason and Jewish law similarly in their aim towards morality, using the term that may be considered modern.69 Hermann Cohen writes that “Judaism simply denies any possible conflict between the concepts of God and of moral reason. Moral law must and can be both: the law of God and the law of reason.”70 For Hermann Cohen, “God represents the point of convergence of logic and ethics.”71 The coherence between reason, law and morality (or the right path) in Judaism is discernable from the interpretation of the reasons for God’s commands, the mitzvoth. The traditional Jewish enterprise of articulating reasons for the commandments is an attempt to ground mitzvoth in canons of rationality.72 The commandments in the Bible are alternatively called laws and statutes, distinguishing between those that accord with reason as humans understand it and those that are impenetrable to reason. One of Maimonides’ “theological innovations was to

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transform this distinction into one between those mitzvoth whose rational purpose was self-evident and those whose rational purpose could be discerned only after careful reflection. All the mitzvoth, then, were rational.”73 A reason often given for God’s commands is mercy.74 Another reason frequently offered is that the mitzvoth are to educate humanity. Maimonides teaches that mitzvoth are for education to perfection.75 This Maimonidean view, as well as the similar view held by the 13th-century Biblical commentator Nahmanides, that all of the commandments are to refine and purify God’s creatures,76 are akin to the Kantian notion seen above that godliness can be a useful propaedeutic to morality. Moshe Sokol relates the Maimonidean point of education towards perfection of the soul to a resolution of the Kantian bind between heteronomy and autonomy: the ultimate end of the divinely imposed laws may be that they are autonomously imposed.77 A contrary view is put forward by the eminent modern Jewish philosopher Yeshayahu Leibowitz. Leibowitz argues that the mitzvoth are to be followed simply as divine commands, and that humans are not to seek reasons for them. While Leibowitz adopts a rational philosophical Kantian method,78 his view that Judaism is about obedience to “Divine imperatives”79 is radically non-Kantian. Kant berates Judaism for its apparent notion of obedience. Leibowitz further maintains that the commandments are to be followed directly for their own sake, and the question of their morality is irrelevant. Leibowitz asserts: The attempt to fuse morality and religion is not a happy one. … Judaism did not produce an ethical theory of its own, was never embodied in a moral system, and made no pretense of representing a specific moral point of view.80 Leibowitz concludes that any religion oriented to values and ideals is “idolatrous.”81 Yet the view that Jewish law is bound to morals is widespread. While in both Kantian theory and Jewish thought reason is usually considered to come along with morality and God’s law, there is a reversal in their ordering. A difference is apparent between them in terms of the direction taken for evaluation of strictures, and whether it is reason or morality or divine command that is prior. Perhaps this is a situation where Kantian and Jewish thought operate in the reverse.82 The rational being is, on Kant’s view, to evaluate God’s command before taking it up. The determination of whether an apparent divine command is moral and in accord with reason – and hence whether it is to be undertaken – is one that relies upon human reason. By contrast, in Judaism, divine commands (which are necessarily in accord with reason) are to be adopted directly, without previous human evaluation. Hence Kant and Judaism deem opposing directions to govern the human method of determining how humans should act with respect to divine instruction: for Kant, people should start with the knowledge that a maxim is a duty and infer that it is a divine command,83 while the Jewish method is to start with the knowledge that something is a divine command and infer that it is a moral duty.84

26 Freedom and Obligation The question of which is prior, divine will or morality, recalls the Socratic dilemma posed by Plato in Euthyphro. The Platonic dialogue asks if the pious is loved by the gods because it is pious, or is it pious because it is beloved by the gods?85 The question can be rephrased when posed by and for theists, who ask whether actions are good because God wills them, or whether God wills them because they are good? In Judaism the question would not arise, asserts Sacks.86 According to the Biblical prophets (such as Amos, Isaiah, Micah and Ezekiel), who predated the classical Greek philosophers, God acts according to God’s will. Tzedek, the Hebrew word for righteousness, means the establishment of God’s will.87 Contemporary philosophers Avi Sagi and Daniel Statman underscore that because God acts only out of His nature, and God’s nature is good, acting for the good does not limit God’s freedom.88 On Jewish tradition, God is also deemed to be subject to the strictures of justice. Justice is not necessarily whatever God declares. In the Bible, Abraham argues for Sodom, challenging God to act with justice (Genesis 18:22–5). Abraham protests to God: “Shall the judge of all the earth not do justice?”89 When God threatens to destroy the Jewish people due to their building of the Golden Calf, Moses’ argument with God raises the likely reaction of other nations were God to kill Israel, implying that they would not believe in God’s justice. Moses then recalls God’s promise to the forefathers of the nation, indicating that God must keep His promises (Exodus 32:11–13).90 The Covenant is said to obligate God to its terms and standards of justice.91 Modern thinkers follow this line as well. God is a moral agent; if this were not so, our being intended to imitate God would not make sense.92 God is held to a standard that is rational and publicly accessible.93 Hermann Cohen, writing in a Kantian and Jewish line of thought, refers to God’s morality.94 The renowned author and Holocaust survivor Elie Wiesel holds that God must conform to justice: “God’s law … commits God as well.”95 Being bound to moral law does not limit God’s freedom, according to both Kant and in Judaism. God – as a perfect agent – cannot do otherwise than will the moral law. Both a Kantian and a Jewish response to the Euthyphro dilemma shows that God’s freedom is not limited by morality, or justice, because God is moral and just.96 Whatever the direction of the relation between reason and God’s will, both Kant and Judaism view them as in accord – with each other as well as with the judgments of morality (for Kant) or justice and the good or right path (in Jewish tradition). For Kant, the rational being’s obligation is to universal reason, which dictates morality and which is in accord with divine will. In Jewish thought, obligation is to God’s command, which dictates morality and which is in accord with reason. Hence even if the method for human ascertainment of moral value differs, the same elements are present in both Kantian theory and Jewish thought.97

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2) Faith A. KANT ON FAITH

As discussed earlier, Kant does not reject faith. Kant argues that reason cannot prove God, and rational faith is the only way to get to God. On Kant’s view, reason and faith can work together. Between reason and Scripture there is not only compatibility but unity.98 Did Kant believe? It cannot be known what was in Kant’s heart; but Kant affirms the importance of the existence of God and faith in God. Also morality and religion cohere: fulfilling the moral law is reaching God.99 Kant asserts that morality leads ineluctably to religion.100 Nor does Kant dismiss the possibility of revelation. Kant’s assessment of the Jewish account of revelation at Sinai is that it cannot be proven by reason: how could the Jewish people be sure that it was God giving them the Ten Commandments? Kant brings a similar criticism of Abraham’s receipt of a divine message calling for the binding of his son Isaac: how could Abraham have been sure that it was God’s voice that he heard? Kant does not reject the possible occurrence of revelation, but rather its certainty and proof.101 B. JUDAISM ON FAITH

In fact, the Jewish tradition does not obligate faith. Neither faith in God, nor in God’s word, is required in the Bible. Faith is a matter of trust. Nor do Jewish thinkers deem reason and faith to be in contradiction. The faithful believer is the person who steadfastly trusts in God.102 While some biblical figures are praised for having faith in God, it is their trust that is at issue.103 The Biblical term that is often translated as “faith” takes on the meaning of trust. For example, the term is used with respect to Abraham’s trust in, or reliance upon, God’s promise that he will have much seed, even while at the time Abraham was childless (Genesis 15:5–6).104 This point is highlighted by Mendelssohn in his analysis of Judaism, perhaps to underscore the lack of conflict with Kantian philosophy. Mendelssohn underscores that among the laws of the Hebrew Bible (“Torah”), none declare “You shall believe or not believe,” but rather command “You shall do or not do.” Faith is not commanded.105 Maimonides’ attempt to define Judaism as requiring faith did not take hold.106 The failure to believe bears no punishment.107 Faith in revelation of God’s word does not mean that Judaism is a faith of dogma; Jewish law is interpreted, upon human reason, as is taken up in Chapter 3. Faith and reason are not in conflict. Like Kant, Jewish thought deems faith in God and revelation as able to work together with reason. Maimonides maintains that reason and revelation correct and reinforce each other: because the infinite cannot be grasped by the senses, revelation was given through reason.108 Modern thinkers have sought to harmonize Judaism with Kant’s view of reason. The work of Mendelssohn is taken to be the “first attempt of a modern thinker to show that there was no contradiction between the truths attainable through reason and what had been disclosed

28 Freedom and Obligation by biblical revelation.”109 Yet Eliezer Berkovits maintains that reason cannot prove the existence of God; if it did, the certainty would impede faith.110 The relation of reason and faith or revelation is not an easy one. In his work Jerusalem and Athens, 111 Leo Strauss poses the tension between science and philosophy on the one hand, and faith and revelation on the other. Athens represents what people accomplish through reason, and Jerusalem stands for the claims of faith or revelation. Strauss (arguably) points to the necessity of both functioning together. Steven Smith takes Strauss to argue against our choosing one side or the other, but for our maintaining recognition of the two contending claims.112 Susan Orr argues that “it is not unimportant that Strauss’ essay is entitled ‘Jerusalem and Athens’ and not ‘Jerusalem or Athens’” – implying that the two can function alongside each other. Orr claims that by refusing to stand with one or the other, Strauss saves both possibilities, but denies a synthesis.113 Strauss believes that there can be no synthesis between philosophy and theology, but “every one of us can be and ought to be either one or the other, the philosopher open to the challenge of theology or the theologian open to the challenge of philosophy.”114 Throughout the ages, some Jewish thinkers have put forward the necessity of science and Jewish law functioning side by side. Maimonides himself was a great medical doctor (and appointed as physician to the Grand Vizier Al Qadi al Fadil, Sultan Saladin, and the royal family in Egypt), as well as a great Jewish scholar. Maimonides’ substantial work on Jewish philosophy, The Guide for the Perplexed, begins with an Epistle Dedicatory in praise of comprehension of maths and science. Also the great rabbi of Kant’s time, known as the Vilna Gaon (1720–1797), acknowledges the importance of education in science and maths alongside Jewish law (“halacha”).115 The notion of internal evaluation of God’s word, as opposed to faith in an external source of authority through revelation, touches upon the apparent divide between Kantian and Jewish thought regarding autonomy v heteronomy. It is to that debate that the discussion now turns. C. Autonomy and Heteronomy The central conceptual disagreement between Kant and Judaism lies in Kant’s distinction between autonomy and heteronomy. Kant holds that no law can be moral or categorical unless it is self-imposed autonomously, rather than accepted from an external, heteronomous authority. The divide between autonomy v heteronomy is considered by many streams of thought. For instance in political theory, the external authority of the state is accepted in democracy only because of the myth of consent. Kant’s critique of external authority has had wide effect on religious thought. With the doctrine of autonomy, Kant “touched off a debate in Judaism.”116 Judaism is deemed heteronomous insofar as God is deemed to impose commandments, and commandments on a Kantian thesis cannot be moral or categorical laws. The external authority of revelation and divine law is deemed to conflict with Kant’s concept of autonomous moral decision-making, which is the capacity

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to guide one’s action on the basis of universally valid rules of reason. Jewish thinkers have been engaging this debate for ages. Yet it is put forward that both Kantian theory and Jewish thought can be seen to involve autonomy as well as heteronomy. Perhaps Kant’s theory bears an element of heteronomy. According to Kant, autonomous decision-making relies on universal reason, and the universal (or noumenal) is beyond and hence to a degree external to the self. Universal reason is within and without the individual, as it is trans-subjective. The rational will adheres to it, and may be presumed obedient to it, as well. Kant in fact theorizes the will as subordinate to law: “What I cognize immediately as a law for me I cognize with respect, which signifies merely consciousness of the subordination of my will to a law.”117 Kant holds that “the moral law commands.”118 The moral law is an “imperative”; people are “subjects in [the kingdom of morals], not its sovereign.”119 Both Kantian theory and Jewish thought have been called “three-fold”: “moral relationships between humans take place in the presence of something else.”120 A law that commands may be understood as deriving not only internally to the autonomous being. Leibowitz takes another stance on the heteronomy of Kant’s moral system. Leibowitz argues that following one’s moral intuition is subjection to nature and natural inclinations, and hence is no more free than being bound to one’s digestive system.121 At the same time, Judaism is not wholly heteronomous. Joseph Soloveitchik sees a dialectic tension in Judaism, which can be referred to these two poles. The Hebrew word for revelation (hitgalut) is a reflexive term indicating discovery, hence reflecting the human part in the process of discover God’s word. The central place held in Judaism by notions of choice, liberty, freedom and indeed autonomy is shown throughout this study. The view of the Covenant as not heteronomously and unilaterally imposed upon the Jewish people, with its obligations being taken on in subordination from an external God, but a relationship built by both parties, is explored. While some Jewish thinkers make a point of not shying away from calling Judaism’s acceptance of divine law heteronomous,122 some perceive the nature of the human relationship with God otherwise. The covenantal partnership examined later reduces the notion of the heteronomous in Judaism. Here mystical movements within Judaism that posit the spiritual fusion of God and man are presented. In some traditional Jewish sources, the Jew’s will is deemed to join with God’s will, such that the choice of path is internal, rather than external and heteronomous. Viewing these elements shows that in Jewish thought the relationship between autonomy and obligation, or freedom and duty, is a close one. 1) Transcendent and Immanent On the approach widely accepted in Judaism, God is conceived as transcendent123 and wholly Other. Yet the tradition also embraces a perspective of God’s immanent relation to the world. Biblical passages from a daily prayer exhibit both views.

30 Freedom and Obligation All may be viewed as One where the seraphim (angels) called one unto another that “the whole earth is full of [God’s] glory” (Isaiah 6:3). The view of God’s transcendence, namely viewing God in His place from afar, follows: “Blessed be the glory of the Lord from His place” (Ezekiel 3:12).124 Upon the view of God as immanent, heteronomy wanes. The notion of God’s transcendence is displayed in the Bible for example when Moses asks to view God’s face and God replies that he can see only God’s back (Exodus 33:18–23), which is taken to mean that Moses is only to perceive the effects of God’s nature but not God’s essence (Babylonian Talmud [“BT”]-Brachot 7a). Moses is only allowed to cognize in retrospect the results of God’s actions in the world. Jewish thinkers throughout the ages have promoted this view. Richard Freund draws an analogy between the Greek worldview – which deems inherently separate the soul and the body, the form and the Idea, the Ultimate Creator and the created – and Maimonides’ deeming God as “‘out there’ and generally dictating to the human being a conduct for life.”125 Steven Schwarzschild writes that Jewish thinkers were hesitant to adopt the attempt of German absolute idealism and Hegelianism to close the gap between noumenon and phenomenon, between the rational and the actual, and between God and the world.126 While deeming the Covenant a relation, David Hartman describes “God as an independent other.”127 On other views, God is both transcendent and immanent. Twentieth-century thinker Martin Buber points to a dualism. Buber theorizes two forms of encounter between the human and God, one in which God is wholly transcendent, and another in which God is in relation with humanity. Upon the encounter of the human and the divine, God meets the human, while God is also wholly Other.128 The human being is in a constant state of relationship with God, enmeshed in one another. Freund has written that for Buber the relation between God and the human being is an “interlocking dependency and interrelationship” of separate entities.129 Also early thinkers saw God as both transcendent and immanent.130 Some perspectives in Jewish thought concentrate on immanence. The Divine is characterized not as the commanding Other standing apart from the human, but joined with humanity. For Spinoza, God and nature are in a union. Nature is part of the One, together with human consciousness and the Divine. While Spinoza’s ideas in that regard were and are considered by some extraordinary, others see them as emanating from longstanding doctrines in Judaism.131 The age-old practice of the symbolic recounting of the numerical values of the letters of the Hebrew alphabet notes that Nature and God’s name are equivalent in their numerical and hence spiritual value; the nature (hateva) and God’s name Elohim both bear the same numerical value. God and Nature are considered in relation. Mystical spiritual traditions within Judaism perceive God not as external to the human, but see the two as fused together. Such traditions were put forth by Hasidic masters from the 18th century and through current times, as well as in the age-old spiritual kabbalistic movement, which has strong resonances today.132 Arthur Green writes of Judaism’s verticality, yet gives examples such as even Moses proclaiming in God’s name that God’s will “is not far off. It is not in

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heaven … nor is it over the sea but it is very close to you, within your own mouths and hearts to be fulfilled” (Deut. 30:11–13).133 Green also names age-old thinkers who saw the Tabernacle as an inner sanctum (such as Philo of Alexandria).134 In Judaism it is the Godly presence that represents the immanence of “divinity throughout the world. In that sense the world is presumed to exist ‘within’ God, rather than being entirely ‘other.’”135 God and God’s commandments cannot, on such a view, be deemed as purely heteronomous. 2) Joining of Wills Also among those not in spiritual traditions, some Jewish thinkers put forward the idea of a joinder of wills. In the early Talmudic period, Gamliel is recorded as saying “Do His will as if it were your will. …”136 The conflict between autonomy and heteronomy is surpassed insofar as the will of the Jew taking up God’s command is held to join with God’s will. The human will adopts the divine will as one. The Jew taking on God’s law is a “blending of obligation with self-consciousness … a union of an outside command with the inner will and conscience of man,”137 according to Soloveitchik. The union of the human will with morality is ascribed to the individual who adopts Jewish law, called by Soloveitchik the halakhic man. Sokol explains Soloveitchik’s halakhic man as: not experience[ing] moral laws as heteronomous commands, but as expressions of what he independently believes to be right, on the basis of his own moral sensibilities. … [Since he] creates his own ideal halakhic world, and that halakhic world embraces moral norms as well, then halakhic man experiences its norms as his own creation, and not as heteronomously imposed.138 Otherness is posited only to be overcome. Lawrence Kaplan explains that for Soloveitchik, the “individual, in becoming one with the halakhah, assimilates it to himself, and thereby both assimilates the thought-will of God for himself and attaches himself to the primordial divine intellect and will.”139 In Soloveitchik’s view, the union of wills does not erase the individual self. Halakhic man protects his selfhood; Judaism does not call for a uniting with infinity, or dissolution into the supernal realm.140 Human autonomy is strong: Halakhic man does not experience any consciousness of compulsion accompanying the norm. Rather, it seems to him as though he discovered the norm in his innermost self, as though it was not just a commandment that had been imposed upon him, but an existential law of his very being.141 Rather than the dissolution of the self, it is the autonomy/heteronomy divide that dissolves. In the actual study and practice of halacha, “the opposition between the revelational religious consciousness and the creative–rational religious consciousness” is overcome and gives rise to a freedom, and “affirmation of man’s creative spirit.”142 For Soloveitchik, “halakhah expresses humanity rather than compels humanity.”143

32 Freedom and Obligation Nevertheless, the autonomy of the halakhic man differs from the Kantian approach. Soloveitchik distinguishes the two, writing that the freedom of the halakhic man should not be confused with the principle of ethical autonomy propounded by Kant and his followers. It is not about creating the law without God’s authority, but realizing it in this world: namely, it is about actualization of the norm in the concrete world.144 Emil Fackenheim also views the acceptance of God’s will as an autonomous act. Fackenheim writes that: “if and when man chooses to accept the Divine commanding presence, he does nothing less than accept the Divine will as his own.”145 This is a heteronomous acceptance of God’s will, but it is done autonomously. In other words, where man autonomously makes God’s will his own, following the divine will is an autonomous act. The idea of a unity of wills is echoed by numerous other Jewish thinkers, and is shown to be in accord with Kantian theory. Seeskin claims that in “Kantian terms, there is unity of will – not because one person has forced compliance on another but because both have decided to define their destiny in terms of the other.”146 Hermann Cohen’s view, that God’s laws are such that any rational person would accept them of their own will, is akin to Kantian thought: “each of us could regard him- or herself as their author.”147 As Lenn Goodman argues, religious duties are not heteronomous because Judaism perceives the Jew as adopting God’s will as their own.148 Judaism’s command to love God can be understood to surpass the autonomy/heteronomy dichotomy. Goodman shows the Kantian and Jewish views of duty on this plane to be similar. For Kant, “duty, when properly appropriated, cannot be considered as alien. The Torah means nothing different when it commands us to love God with all our hearts and to express our love of God by setting His commands upon our hearts.”149 Soloveitchik regards the laws as being written on the hearts of the Jewish people.150 Thus, it may be said that despite Kant’s discrediting of Judaism, both adopt elements which may be called autonomous and heteronomous. Similarly, both Kant and Judaism embrace the Right and the Good. Just as autonomy is internal to the individual and heteronomy is externally imposed, so too the Right regards the internal essence of human nature, whereas the Good aims towards an external end. Both may be taken together. It is shown that Kantian and Jewish thought relate to both the Right and the Good, affirming the Right thing to do and the right of the individual, but also setting the Good as a goal. The Good is a telos for individual perfection or a societal goal. The Kantian and Jewish conceptions of positive freedom may further be presumed both autonomous as well as heteronomous. The individual has freedom: the autonomy of the self is profound. Yet that freedom intrinsically incorporates duties towards the Other (God) and others. It aims externally in requiring respect of others.

III Conclusion Kantian theory and Jewish thought are closer than they are often deemed to be. Hence the two can legitimately – and fruitfully – be analyzed together. Both are particular as well as universal, regarding the self and the other. Both affirm faith, as

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well as reason and the moral law. Judaism’s sense of freedom is not starkly heteronomous in contrast with Kantian autonomy; the Covenant in Judaism is relational, and in it the human and God’s will are thought to join. The fundamental similarity put forward between Kantian theory and Jewish thought is their similar conceptions of autonomy and freedom as in essence bound with obligation, and the duty to respect the freedom and dignity of the other. While both for Kant and in Judaism freedom and obligation are inextricably linked, a number of reversals are apparent. Kant is commonly thought to prioritize freedom, and Judaism is commonly perceived to pose obligation as the primary value. Yet this seeming reversal of direction is in fact in the reverse order. Kant bases his theory centrally on obligation, and in Judaism freedom is prior: humans are created in freedom, and only with freedom may they take on obligation. Nonetheless, the presentation of the analysis of freedom and obligation follows the common presumption, namely beginning with freedom for Kant (in Chapter 2) and with obligation in Judaism (in Chapter 3). A further reversal seen above regards whether reason or morality or divine command is considered prior (as in the Euthyphro dilemma: is an action moral because God commands it, or does God command the act because it is moral). Reversals in view later in this study regard the order of priority of individual and community, and of legal right and duty, as explored in Part II.

Notes 1 Babylonian Talmud [“BT”] Berakoth 58a. Discussions from the 3rd and 5th centuries of sages interpreting Jewish law are set forth in the Talmud, which is still accepted today as the basis of Jewish law, called halacha. The Mishnah (including for instance Ethics of the Fathers (Pirkei Avot)) is incorporated into the first portion of the Talmud. 2 Paul Franks attributes this blessing to Isaac Breuer (citation omitted). Paul Franks, “Jewish Philosophy after Kant: The Legacy of Salomon Maimon” in The Cambridge Companion to Modern Jewish Philosophy, eds Michael L Morgan and Peter Eli Gordon (Cambridge: Cambridge UP, 2007) 53. 3 Maimonides and the Vilna Gaon are well-known examples, as described below. Ties between democratic liberal thought and Judaism are set forth in Chapter 6. 4 Texts used here are: Immanuel Kant, Religion within the Limits of Reason Alone, trans & eds Theodore M Greene and Hoyt H Hudson (1793)(New York: Harper Torchbooks, 1960), and Immanuel Kant, Religion within the Boundaries of Mere Reason, trans & eds Allen Wood and George di Giovanni (1793, 1996), reprinted in Immanuel Kant, Religion and Rational Theology (Cambridge: Cambridge UP, 2001). 5 Immanuel Kant, “An Answer to the Question: What is Enlightenment?” (1784) in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996) 8:40–1. 6 Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 12. 7 “Introduction” to Kant, Religion within the Limits, trans & eds Greene and Hudson lxxv. 8 Immanuel Kant, “Toward Perpetual Peace” (1795) in Practical Philosophy 8:367*, at 336. I extend thanks to Professor Ralph Walker for the insightful discussion of this passage.

34 Freedom and Obligation 9 As Kant had written his declaration “as your Majesty’s most faithful servant,” he felt that it bound him only during the king’s lifetime. “Introduction” to Kant, Religion within the Limits, trans & eds Greene and Hudson xxxv. 10 Immanuel Kant, The Conflict of the Faculties, trans Mary J Gregor and Robert Anchor (1798, 1996) in Kant, Religion and Rational Theology, in reliance upon Mary J Gregor’s translation (New York: Abaris Books, 1979) 7:44, at 269. 11 Immanuel Kant, “What Does it Mean to Orient Oneself in Thinking?” (1786) in Immanuel Kant, Religion and Rational Theology 8:142, at 11–12. 12 Ibid 8:143. Interestingly, while Kant critiques intuition, in his theory of rationality he relies on an innate sense of ought: the rational being realizes the obligation, as the law “of itself finds entry into the mind.” Immanuel Kant, Critique of Practical Reason (1788) in Practical Philosophy 5:86. Greene and Hudson explain that Kant is not referring here to an irrational insight, but a sense that is “immediate, irreducible, and not itself debatable.” “Introduction” to Kant, Religion within the Limits, trans & eds Greene and Hudson li, lii. Rational faith and the direction of evaluations of God’s word are discussed below. 13 Kant, “What Does it Mean to Orient Oneself,” 8:143, 8:145. 14 “Introduction” to Kant, Religion within the Limits, trans & eds Greene and Hudson xxxv, xlviii. 15 Immanuel Kant, Critique of the Power of Judgment, eds Paul Guyer and Eric Matthews (Cambridge: Cambridge UP, 2000) §90, 5:463. 16 Kant, Religion within the Limits, trans & eds Greene and Hudson, 112 (in eds Wood and Giovanni, 151). The citation Kant brought is from I Corinthians XV, 28. Kant’s fuller passage states that reason will succeed once it is “freed from empirical determining grounds and from all statutes which rest on history” – the latter of which presumably indicates Judaism. 17 Immanuel Kant, Critique of Pure Reason, trans & eds Paul Guyer and Allen W Wood (Cambridge: Cambridge UP, 1998) Preface 2nd edition, Bxxx [B signifies the German edition of 1787]. 18 Kant, “Toward Perpetual Peace” in Practical Philosophy 8:367, at 336 n5. 19 Kant, Critique of Practical Reason 5:129. 20 Kant, Critique of Practical Reason 5:128. 21 Ibid 5:125. Kant’s Critique of Practical Reason includes a section (5:124–32) entitled “The Existence of God as a Postulate of Pure Practical Reason.” Critique of Practical Reason. See also Frederick C Beiser, “Moral Faith and the Highest Good” in The Cambridge Companion to Kant and Modern Philosophy, ed Paul Guyer (Cambridge: Cambridge UP, 2006) 604–5 on Kant’s moral proofs of the existence of God in the three critiques (especially Section V of the Dialectics of the second Critique (5:124–5), and §88 of the third Critique). 22 Alasdair MacIntyre writes of Kant’s attempt to establish on a secular rational basis a morality of law that presupposes God. Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Bloomsbury Academic, 1981) 56. 23 Kant, Critique of Practical Reason 5:125: “the ethical project requires us to hope for the highest good, and since this hope is realizable only with divine assistance, it follows that the ethical project requires belief in God. Religion is thus required by reason as part of morality” (emphasis in original). 24 Kant, Critique of Practical Reason 5:124–30. Jewish sources make similar claims. Maimonides, The Guide for the Perplexed 3:32 (“people are allowed to continue the kind of worship [including sacrifices] to which they have been accustomed”). 25 Kant’s notion that godliness can be a useful propaedeutic to morality is analogous to Maimonides stating that mitzvoth (God’s commands) are there to educate us to perfection, as seen further below. The analogy is made between Kant and Maimonides in Lenn E Goodman, “The Individual and the Community in the Normative Traditions of Judaism” in Autonomy and Judaism: The Individual and the Community in Jewish

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Philosophical Thought, ed Daniel H Frank (Albany: SUNY [State University of New York], 1992) 111 n48 [referenced from page 74]. Immanuel Kant, Opus Postumum (Cambridge: Cambridge UP, 1995) 22:105, 198; 22:115, 200. For a summary of Kant’s various statements in the Opus Postumum relating God to the moral law, see Kemp Smith, A Commentary to Kant’s Critique of Pure Reason (London: Macmillan, 1918) 2nd ed, App C. There has been much discussion of Kant’s critique of Judaism, for example, Emil L Fackenheim, The God Within: Kant, Schelling and Historicity, ed John Burbridge (Toronto: Univ Toronto, 1998) 4; Susan Meld Shell, Kant and the Limits of Autonomy (Cambridge, MA: Harvard UP, 2009) 306 ff (on four historical stages in Kant’s attitude to Jews and Judaism). Kant, Religion within the Boundaries, trans & eds Wood and Giovanni, 6:125 (emphasis in original). Ibid. 6:127; ibid. 6:166 n*, at 162–3 (even if Judaism’s “yoke of external observances” were lifted, there would still be the “yoke of faith in sacred history”). Ibid 6:126 (emphasis in original). Hence, in Kant’s view, Judaism is “a delusion of religion.” Ibid 6:168. Immanuel Kant, “On a recently Prominent Tone of Superiority in Philosophy” (1796) in Immanuel Kant, Theoretical Philosophy after 1781, eds Henry Allison and Peter Heath, trans Gary Hatfield and Michael Friedman (Cambridge: Cambridge UP, 2004) 8:405. Preferring reason to external authority, Kant derides when “reason’s moral bidding is made into a veiled Isis.” Ibid. Kant objects to religions assigning the voiceless authority to a divine presence: bending the knee to God. Catherine Chalier, What Ought I to Do? Morality in Kant and Levinas, trans Jane Marie Todd (Ithaca: Cornell UP, 2002) 23 n48. Others interpret this passage as Kant’s “polemic against Romantic philosophers of feeling.” It berates those who claim a “power of intuition.” Christine Battersby, The Sublime, Terror, and the Human Difference (London: Routledge, 2007) 117; ibid (2013 edition) 93. See also Barbara Claire Freeman, The Feminine Sublime: Gender and Excess in Women’s Fiction (Berkeley: Univ Calif, 1995) 115–18. In the view of James DiCenso, “Spinoza was almost certainly a direct influence on Kant” insofar as both intended to “undermine the religious authority behind all forms of despotism.” James J DiCenso, Kant, Religion and Politics (Cambridge: Cambridge UP, 2011) 260. Similarities are also evident insofar as both Kant and Spinoza differentiate between reason and “cultural renderings of divine law.” Ibid 261. Both hold that true religion manifests rational principles. Ibid 257 & n56. Yirmiyahu Yovel presumes an indirect influence of Spinoza on Kant. Yirmiyahu Yovel, “Biblical Interpretation as Philosophical Praxis: A Study of Spinoza and Kant,” 11(2) Journal of the History of Philosophy 189 (1973). “This, then, was the object of the ceremonial law, that men should do nothing of their own free will, but should always act under external authority, and should continually confess by their actions and thoughts that they were not their own masters.” Benedict de Spinoza, Theologico-Political Treatise, ed Jonathan Israel (Cambridge: Cambridge UP, 2007) (1669–79) 5:58, 76. Lawrence Kaplan writes that Kant adopts Spinoza’s critique of Judaism. Lawrence J Kaplan, “Joseph Soloveitchik and Halakhic Man” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 209. Yet Kant does not expressly do so; he contrasts his position with Spinoza’s. Kant, “What Does it Mean to Orient Oneself,” 8:144*. Charles Taylor, “Kant’s Theory of Freedom” in Conceptions of Liberty in Political Philosophy, eds ZA Pelczynski and J Gray (London: Athlone, 1984) 107–8. Kant, Critique of Pure Reason (objects conform to our cognition). The rational being’s faculty of the understanding prescribes laws to nature. Immanuel Kant, Prolegomena to Any Future Metaphysics That Will Be Able to Come Forward as Science, trans & ed Gary Hatfield (Cambridge: Cambridge UP, 1997) 4:318–9.

36 Freedom and Obligation 36 Robin May Schott, “Feminism and Kant: Antipathy or Sympathy?” in Autonomy and Community: Readings in Contemporary Kantian Social Philosophy, eds J Kneller and S Axinn (Albany: SUNY, 1998) 89–92. The equality claim is important in feminist theory, which often rejects or would reshape the aspect of Kantian autonomy perceived as atomistic, as addressed in Chapter 4. Feminism “simultaneously demands a respect for women’s selfhood and rejects the language and assumption of individual rights.” Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities,” 1 Yale J Law and Feminism 7 (1989) 8. 37 Lewis White Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago: Univ Chicago, 1960) 201. Whether Kant successfully coheres the self both phenomenal and transcendental/universal is a matter of debate. Compare ibid 210; Thomas E Hill, Jr, Autonomy and Self-Respect (Cambridge: Cambridge UP, 1991) 45; John Rawls, A Theory of Justice (Cambridge, MA: Harvard UP, 1971) 227. 38 Kant “pays particularity the compliment of seeing it as the expression of self-determining activity.” Ernest Joseph Weinrib, The Idea of Private Law (Cambridge, MA: Harvard UP, 1995) 129. 39 Eugene B Borowitz, “Autonomy and Community” in Autonomy and Judaism, ed Frank 10. 40 Amos Oz and Fania Oz-Salzberger, Jews and Words (New Haven: Yale UP, 2012) 48. 41 Former Israeli Supreme Court Justice Izhak Englard likens Jewish tradition to the medieval outlook that tended to view human beings not in their individuality, but as part of the community, of the people and nation. Izhak Englard, “Human Dignity: From Antiquity to Modern Israel’s Constitutional Framework,” 21 Cardozo L Rev 1903 (2000) 1910. 42 Jonathan Sacks, Universalizing Particularity, eds Hava Tirosh-Samuelson and Aaron W Hughes (Leiden: Brill, 2013) 50. Sacks labels justice as universal and love as particular in the Jewish tradition. Jonathan Sacks, Covenant & Conversation: Love is not Enough (Vayetse, 5775) 24 November 2014. 43 Nathan Sharansky, Fear No Evil, trans Stefani Hoffman (New York: Vintage Books, 1998) xxviii. 44 Jonathan Jacobs, “Particularism, Pluralism, and Liberty” in On Liberty: Jewish Philosophical Perspectives, ed Daniel H Frank (New York: St Martin’s, 1999) 87. 45 Emmanuel Levinas, Difficult Freedom: Essays on Judaism (London: Athlone, 1989) 13. See Ephraim Meir, Levinas’s Jewish Thought: Between Jerusalem and Athens (Jerusalem: Magnes-Hebrew Univ, 2008) 31 (and generally his chapter entitled “Between Professional and Confessional Writings”). On the proximity between Levinas and Kant, see Peter Atterton, “From Transcendental Freedom to the Other: Levinas and Kant” in In Proximity: Emmanuel Levinas and the 18th Century, eds Melvyn New, Robert Bernasconi, and Richard A Cohen (Lubbock: Texas Tech Univ, 2001). 46 Jonathan Sacks, Covenant & Conversation: Faith, Universal and Particular (Miketz, 5768) 8 December 2007. 47 The term telos is used to indicate a perfectionist goal or aim. The Aristotelian sense of teleology is not here engaged, although on some accounts Kantian theory and Jewish thought may approach it. The Kantian capacity of the rational being, the Jewish notion of all created in the image of God (bezelem), and the Aristotelian potentiality and aim of actualization, are examined in Chapter 2. 48 Kenneth Seeskin, “Ethics, Authority, and Autonomy” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 196. 49 Seeskin, Autonomy in Jewish Philosophy 125. 50 Babylonian Talmud [“BT”]-Shabbat 31a (Abba ben Joseph bar Hama, known as Rava) (upon one’s death, at the throne of divine justice, one will be asked: did you reason wisely?). 51 Maimonides, Guide for the Perplexed 3:51.

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52 Yoram Hazony, The Philosophy of Hebrew Scripture (Cambridge: Cambridge UP, 2012) 231, 238 (on reason and wisdom). Hazony views the Hebrew Bible as a work of philosophy. 53 Elliot N Dorff, “Medieval and Modern Theories of Revelation” in Etz Hayim: Torah and Commentary, eds David L Leiber et al (New York: Rabbinical Assembly-Jewish Publication Society, 1985, 2001) 1399–1400; Ze’ev W Falk, “Can Judaism Incorporate Human Rights, Democracy, and Personal Autonomy?” in On Liberty, ed Frank 124. 54 Prophetic visions or dreams (see for example Chapter 3 on the command of the binding of Isaac as a vision) are not antithetical to the intellect, but work in conjunction with it. The imagination is the expression of the intellect, free from the senses. People aim towards (and the prophets begin to master) the rational faculty, imaginative faculty, and moral habits. Maimonides, Guide for the Perplexed 2:36, 2:41, 2:42. I extend thanks to Amira Rosenberg for this insight into the Maimonidean view. See also Jonathan Jacobs, “Particularism, Pluralism, and Liberty” in On Liberty, ed Frank 87. 55 Joseph B Soloveitchik, Halakhic Man (Philadelphia: Jewish Publication Society, 1983) 83–4. 56 Maimonides, Guide for the Perplexed 1:1; Sforno on Genesis 1:27 (power of discernment). 57 Lenn E Goodman, “Individuality” in Judaic Sources and Western Thought: Jerusalem’s Enduring Presence, ed Jonathan A Jacobs (Oxford: Oxford UP, 2011) 244. 58 Seeskin, Autonomy in Jewish Philosophy 104–6. 59 Maimonides, Guide for the Perplexed 3:52. 60 Kant, Conflict of the Faculties 7:69–70, at 288. 61 Ibid 7:70, at 288–9. Throughout the book, I use “man” when the human is indicated as such by Kant or other thinkers and in Jewish texts. In my analysis, the reference is meant to be non-gendered. 62 Seeskin, Autonomy in Jewish Philosophy 112. 63 Soloveitchik, Halakhic Man 65. 64 Maimonides, Guide for the Perplexed 3:27. 65 Ibid 3:54. See also Goodman, “Individuality” in Judaic Sources, ed Jacobs 244 (the perfection of the individual morally and intellectually enables the individual to realize the inner affinity with God). 66 David Hartman, A Living Covenant: The Innovative Spirit in Traditional Judaism (New York: Free Press, 1985) 98 (the covenantal relationship is both ethical and intellectual). 67 Maimonides, Guide for the Perplexed 3:54. Regarding which element promotes which, see David Shatz, “Maimonides’ Moral Theory” in The Cambridge Companion to Maimonides, ed Kenneth Seeskin (Cambridge: Cambridge UP, 2005). Regarding which is most central, see Walter Wurtzburger, “The Centrality of Creativity in the Thought of Joseph B Soloveitchik” in Exploring the Thought of Rabbi Joseph B Soloveitchik, ed Marc D Angel (Hoboken: Ktav, 1976) 283. 68 Eliezer Berkovits, Not in Heaven: The Nature and Function of Jewish Law (Jerusalem: Shalem, 2010) 28, first published as Not in Heaven: The Nature and Function of Halakha (Jerusalem: Shalem, 1983) (on Halevi’s Kuzari). 69 On “morality” as a post-classical term, see MacIntyre, After Virtue 116. In earlier times “morality” was a particular concept related to social structure, while the modern sense of it is universal. Morality is presented here as regarding both particular and universal. 70 Hermann Cohen, “Affinities between the Philosophy of Kant and Judaism” in Reason and Hope, trans E Jospe (New York: WW Norton, 1977) 81. 71 Irene Kajon, Contemporary Jewish Philosophy: An Introduction (London: Routledge Jewish Studies Series, 2006) 24. See also Seeskin, Autonomy in Jewish Philosophy 160

38 Freedom and Obligation

72 73 74 75 76 77

78

79 80 81 82 83 84 85 86 87 88

89 90

91

(Hermann Cohen aims to show that a religion of reason can be put together from sources in Judaism, just as Kant showed can be done from the Gospels); Andrea Poma, “Hermann Cohen: Judaism and Critical Idealism” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 90–1 (Hermann Cohen aims to harmonize Kant and Judaism, including with regard to the concept of critical reason). Moshe Sokol, “Personal Autonomy and Religious Authority” in Rabbinic Authority and Personal Autonomy, ed Moshe Sokol (Northvale: Jason Aronson, 1992) 199. Hartman, A Living Covenant 90. Contrasting views of whether or not mercy is the basis for instance of the commandment not to steal eggs from a nest while the mother bird is watching are recounted in Chapter 3. Maimonides, Guide for the Perplexed 3:28, 3:31 (mitzvoth inculcate truth, remove erroneous opinion, improve social relations, remove injustice, teach good morals). Commentary of Nahmanides (known as Ramban) on Deut. 22:6. See also Ecclesiastes Rabbah 1; Ze’ev W Falk, “Can Judaism Incorporate Human Rights, Democracy, and Personal Autonomy?” in On Liberty, ed Frank 119. The commandments are “to put us on the right moral track, as it were, to provoke us into imposing those laws upon ourselves, autonomously.” Moshe Sokol, “The Autonomy of Reason, Revealed Morality and Jewish Law,” 22 Religious Studies 423 (1986) 433 (discussing Midrash Tanhuma-Ki Tavo aleph 3:46). “Leibowitz’s thought is properly Kantian: a rigid dichotomizing between divine and human, religion and morality, norm and fact.” Adam Zachary Newton, The Fence and the Neighbor: Emmanuel Levinas, Yeshayahu Leibowitz, and Israel Among the Neighbors (Albany: SUNY, 2000) 124. Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State, ed Eliezer Goldman, trans Eliezer Goldman, Yoram Navon, Zvi Jacobson, Gershon Levi, and Raphael Levy (Cambridge, MA: Harvard UP, 1995) 18. Ibid 6–7. Ibid 22. The primary reversal explored here is that for Kant autonomy means obligation, while in Judaism obligation is freedom. Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) [“GMM”] in Practical Philosophy 4:408; Kant, “What Does it Mean to Orient Oneself,” 8:142. Seeskin, Autonomy in Jewish Philosophy 13–14. Plato, Euthyphro 10a. Jonathan Sacks, To Heal a Fractured World: The Ethics of Responsibility (New York: Schocken, 2005) 164. Norman H Snaith, The Distinctive Ideas of the Old Testament (London: Epworth, 1945) 70. Avi Sagi and Daniel Statman, Religion and Morality, trans Batya Stein (Amsterdam: Rodopi/Brill, 1995) 62–3 (on the Divine Command Theory). On the Euthyphro debate in Judaism, see Aharon Lichtenstein, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?” in Modern Jewish Ethics, ed Marvin Fox (Columbus: Ohio State Univ, 1975). Hazony sees this as the first of a series of texts in which biblical figures “seem to hold God’s actions to a moral standard that does not derive from these actions themselves.” Hazony, Philosophy of Hebrew Scripture 104. A similar call for God’s justice is the response by Moses and Aaron to God’s anger at a rebellion: “Shall one man sin and wilt Thou be wroth with all the congregation?” (Numbers 16:22). Sokol deems these narratives to be examples of autonomy. Moshe Sokol, Judaism Examined: Essays in Jewish Philosophy and Ethics (New York: Touro College, 2013) 266. Irving Greenberg, The Voluntary Covenant (New York: National Jewish Resource Center, 1982) (the Covenant is a mutual obligation).

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92 Seeskin, Autonomy in Jewish Philosophy 220. 93 Ibid 161 (Hermann Cohen follows the rabbis); ibid 220 (Hermann Cohen suggested a reformulation of the Second Commandment as: “Thou shalt make no image of the moral subject”) (citation omitted). 94 Hermann Cohen, Religion of Reason Out of the Sources of Judaism (1919), trans Simon Kaplan (Atlanta: Scholars Press, 1995) 109 (the holiness of man and of God is morality). 95 Elie Wiesel, “The Sacrifice of Isaac: A Survivor’s Story” in Elie Wiesel, Messengers of God: Biblical Portraits and Legends, trans Marion Wiesel (New York: Simon & Schuster, 1976) 69–102, 90–1. 96 In Judaism, justice is considered God’s creation. David Novak, “Natural Law and Jewish Philosophy” in Judaic Sources, ed Jacobs 158. 97 Given Judaism’s reliance on reason and not faith alone, Jewish thought can be effective in civil and legal society, as argued in the Introduction to Part II. 98 Kant, Religion within the Boundaries of Mere Reason, trans & eds Wood and Giovanni, Preface to the 2nd edition 6:13. 99 Ibid 6:112–3 (moral law is divine command). 100 Ibid Preface to the first edition 6.3, 6.6. See also Onora O’Neill, On Kant and Reason and Religion (Tanner Lectures, Harvard Univ, 1996), reviewing the Preface to the second edition. Morality inevitably leads to religion because the duty to realize the good brings about, in people, an interest in the existence of such a world. Francesco Tomasoni, Modernity and the Final Aim of History: The Debate Over Judaism from Kant to the Young Hegelians (Dordrecht: Kluwer Academic, 2003) 71. The movement is from ethics to religion, rather than vice versa, Lori Krafte-Jacobs, Feminism and Modern Jewish Theological Method (New York: Peter Lang, 1996) 26–7, as was evident in the discussion of the Euthyphro dilemma. 101 Kant writes: “if something is represented as commanded by God in a direct manifestation of him yet is directly in conflict with morality, it cannot be a divine miracle despite every appearance of being one (e.g. if a father were ordered to kill his son who, so far as he knows, is totally innocent).” Kant, Religion with the Boundaries of Mere Reason, eds Wood and Giovanni 6:87. See also Kant, Conflict of the Faculties 7:63, at 283. 102 Menachem Kellner, Must a Jew Believe Anything? (Oxford: Littman Library of Jewish Civilization, 2006) 13. The faithful believer is one who trusts, and acts in accordance with that trust. Biblical and rabbinic Judaism emphasize belief expressed in behavior rather than words. Ibid 13. Also the meaning of truth as trust, rather than as affirming the truth of certain propositions, is considered in Chapter 6. 103 Hazony, Philosophy of Hebrew Scripture 240. 104 See also Exodus 14:31. Haim Cohn relates the absence of an obligation of faith to freedom of thought in Judaism. Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984) 107. 105 Allan Arkush, “The Liberalism of Moses Mendelssohn” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 41. 106 Today’s Orthodox Jews “politely ignore Maimonides’ innovation.” Kellner, Must a Jew Believe Anything? 107. 107 Haim Cohn, Human Rights in Jewish Law 108 (no criminal offense stands so long as the failure to believe was not manifested by an overt act apart from words). 108 Seeskin, Autonomy in Jewish Philosophy 155, 144. See also Leo Strauss, Spinoza’s Critique of Religion, trans EM Sinclair (Chicago: Univ Chicago, 1965) 148, 158–60 (while for Spinoza reason is adequate, Maimonides finds it insufficient). 109 Arkush, “The Liberalism of Moses Mendelssohn” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 37. Arkush underscores that while this view is widely held of Mendelssohn’s work, Mendelssohn “does not explicitly claim to have written such a work.” Ibid.

40 Freedom and Obligation 110 The “logical necessity of valid proofs would considerably reduce the element of freedom and risk necessary for the act of faith … [T]he intellectual compulsion alone would undermine the value of man’s commitment to God.” Eliezer Berkovits, “The Encounter with the Divine” in Eliezer Berkovits, Essential Essays on Judaism, ed David Hazony (Jerusalem: Shalem, 2002) 229. 111 Leo Strauss, “Jerusalem and Athens” (1950) in Leo Strauss, Jewish Philosophy and the Crisis of Modernity: Essays and Lectures in Modern Jewish Thought, ed Kenneth Hart Green (Albany: SUNY, 1997). 112 Steven B Smith, “Leo Strauss and Modern Jewish Thought” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 153. Science and philosophy cannot disprove revelation, and vice versa: revelation could not refute the facts of nature or the laws of physics. Catherine Zuckert, “Strauss’s Return to PreModern Thought” in The Cambridge Companion to Leo Strauss, ed Steven B Smith (Cambridge: Cambridge UP, 2009) 113. 113 Susan Orr, “Strauss, Reason, and Revelation: Unraveling the Essential Question” in Leo Strauss and Judaism: Jerusalem and Athens Critically Revisited, ed David Novak (Lanham: Rowman & Littlefield, 1996) 31; ibid 39–41. Alternatively, Strauss may be seen as having chosen Athens over Jerusalem. “Introduction” in Strauss and Judaism, ed Novak xiv; Hadley Arkes, “Athens and Jerusalem: The Legacy of Leo Strauss” in Strauss and Judaism, ed Novak 17. 114 Leo Strauss, “Progress or Return?” in The Rebirth of Rational Political Rationalism, ed Thomas Pangle (Chicago: Univ Chicago, 1989) 270. 115 Commentary of Eliyahu ben Shlomo Zalman on Proverbs 6:4. The Vilna Gaon was praised for joining his knowledge of the world and Jewish law, in the judicial decision of CA 506/88 Shefer v the State of Israel, IsrSC 48(1) PD 87 (1994) (Justice Elon) para 60, and in the decision Hoffman I discussed in Chapter 6, HCJ 257/89, 2410/ 90 Hoffman v Western Wall Commissioner, IsrSC 48(2) PD 265 (1994) (Justice Elon) para 37. 116 Seeskin, “Ethics, Authority, and Autonomy” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 194. 117 GMM 4:401* (emphasis in original). See also GMM 4:400 (“Only what is connected with my will … [and] does not serve my inclinations … can be an object of respect and so a command”). 118 Kant, Critique of Practical Reason 5:129. 119 Ibid 5:32, 5:82. 120 Sidney Axinn, “Kant on Judaism,” 59(1) Jewish Quarterly Review 9 (1968) 22. 121 Leibowitz, Judaism 29. Leibowitz argues that freedom cannot be a function of acting according to one’s own nature if man’s nature “is only the last link in a causal chain of the forces of inorganic and organic nature which act upon him and within him.” Ibid. If this is the case, then the ethical dictates of human reason no more render man autonomous than do the “acts” of his digestive system. Supporting the argument that moral intuitions are natural is Kant’s statement that the moral law “itself finds entry into the mind” (Kant, Practical Philosophy 5:86), recorded above. As is further addressed in Chapter 3, Leibowitz concludes that man is only free from the bondage of nature where he lives a life that is contrary to nature, in following the mitzvoth. Leibowitz, Judaism 22. 122 For example, Robert M Cover, “Obligation: A Jewish Jurisprudence of the Social Order” in Law, Politics, and Morality in Judaism, ed Michael Walzer (Princeton: Princeton UP, 2006) 15, reprinted from 5 JL & Religion 65 (1987) (recalling the heteronomous nature of the Sinai myth in Judaism). Levinas calls moral life a “privileged heteronomy” that liberates freedom. Chalier, What Ought I to Do? 78 (citation omitted).

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123 The term “transcendent” indicates beyond, or outside of, and “transcendental” means necessary and universal. Robert C Solomon, A History of Western Philosophy since 1750: The Rise and Fall of the Self (Oxford: Oxford UP, 1988) 31. 124 The prayer is part of the silent standing prayer. See also Arthur Green, Radical Judaism: Rethinking God and Tradition (New Haven: Yale UP, 2010) 67. 125 Richard A Freund, “Buber’s Biblical and Jewish Ethics” in Martin Buber and the Human Sciences, ed Maurice Friedman (Albany: SUNY, 1996) 83–4. On Maimonides’ view of the radical otherness of divinity, see David Hartman, Conflicting Visions: Spiritual Possibilities of Modern Israel (New York: Schocken, 1990) 131. 126 Steven S Schwarzschild, “Modern Jewish Philosophy” in Contemporary Jewish Religious Thought, eds AA Cohen and Paul Mendes Flohr (New York: Charles Scribner’s Sons, 1986). 127 Hartman, A Living Covenant 23; ibid 17 (“Human finitude and the sense of being a creature separate from God remain permanent features of the religious life”); ibid 259 (“the mystical longing to be absorbed in eternity … [is] not essential for us to stand as dignified finite creatures before our Creator”). Hartman explains that “Covenantal relatedness presupposes the integrity of the other.” Ibid 25. 128 Freund, “Buber’s Biblical and Jewish Ethics” in Martin Buber and the Human Sciences, ed Friedman 84; ibid 83 (“Buberian dualism”). 129 Ibid 82–3. 130 Sarah Pessin, “Jewish NeoPlatonism: Being above Being, and Divine Emanation in Solomon ibn Gabirol and Isaac Israeli” in The Cambridge Companion to Medieval Jewish Philosophy, eds Daniel H Frank and Oliver Leaman (Cambridge: Cambridge UP, 2003) 100. 131 Steven Nadler, “Baruch Spinoza and the Naturalization of Judaism” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 14–34. On God being close to nature, see David Novak, “Philosophy and the Possibility of Revelation: A Theological Response to the Challenge of Leo Strauss” in Strauss and Judaism, ed Novak 183. 132 See Gershom Scholem, Kabbalah (Jerusalem: Keter Publishing House, 1988). 133 Green, Radical Judaism 35. This passage is widely understood with a different meaning, as seen in Chapter 3. 134 Ibid 36. 135 Ibid 66. 136 Ethics of the Fathers (Pirkei Avot) 2.4. 137 Soloveitchik, Halakhic Man 65. Union with the Divine Active Intellect is also an implication of the human active intellect that rationality enables, as set out above. 138 Moshe Sokol, “Master or Slave? Rabbi Joseph B Soloveitchik: Human Autonomy in the Presence of God” in Turim: Studies in Jewish History and Literature, ed Michael A Shmidman, vol 1 (New York: Touro College, 2007) 289. 139 Kaplan, “Joseph Soloveitchik” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 225. 140 Soloveitchik, Halakhic Man 78. The question whether people can be thought to have agency, if our wills are one with God, is considered in Jerome I Gellman, “The Denial of Free Will in Hasidic Thought” in Freedom and Moral Responsibility: General and Jewish Perspectives, eds Charles H Manekin and Menachem M Kellner (Bethesda: Univ Maryland, 1997) 115. 141 Soloveitchik, Halakhic Man 64–5. 142 Kaplan, “Joseph Soloveitchik” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 226–7. 143 Hartman, A Living Covenant 68. 144 Soloveitchik, Halakhic Man 153 n80 [referenced from page 66]. Yet Hartman explains that for Soloveitchik this includes also the intellectual freedom of halakhic man in constructing the norm itself. Hartman, A Living Covenant 70 (on BT-Kiddushin 40b).

42 Freedom and Obligation 145 Emil Fackenheim, “Abraham and the Kantians” in Emil Fackenheim, Encounters between Judaism and Modern Philosophy (New York: Basic Books, 1973) 47. 146 Seeskin, Autonomy in Jewish Philosophy 225 (biblical descriptions of the Covenant). 147 Ibid 48. 148 Goodman, “The Individual and the Community” in Autonomy and Judaism, ed Frank 110–11 n48 [referenced from text page 74]. 149 Ibid 111 n48. 150 Saul Weiss, Insights of Rabbi Joseph B. Soloveitchik: Discourses on Fundamental Theological Issues in Judaism (Lanham: Rowman & Littlefield, 2005) 33 (the Written law was written in ink, and the Oral law in the heart and mind and soul). The Oral law, comprised of halahic rulings developed by rabbinical authorities, is deemed to be within human nature. Kaplan, “Joseph Soloveitchik” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 230.

2

Autonomy as Obligation: Kant and Traditions of Positive Freedom

The conception of autonomy has an important place in Western liberalism. It is a part of law, and of culture. Central to that conception and to the tradition that has grown up around it is the work of Immanuel Kant. Kant’s theory of autonomy marked a “crucial step” in the development of freedom as the “central value in our culture.”1 “It is with Kant that philosophical claims about the self [as a reflective being] attained new and remarkable proportions.”2 Today, the influence of Kant’s concept is felt in many diverse fields. The roots of Kantian autonomy are to be found in works of religious thinkers and Renaissance humanists.3 Kant’s conception influences modern political theory and liberal democracy,4 as well as philosophy5 and law.6 It is the Kantian concept of autonomy that is often cited as the basis for many of the fundamental rights in European, English and US law.7 Under examination here is Kant’s moral theory. The obligation that arises from Kant’s concept of autonomy is explored, as well as its implications for the current concept of freedom and rights. My task here is not to delve into the particulars of the historical development of positive freedom, but to trace the roots of the Kantian concept of autonomy as it relates to freedom and obligation. Nor is my goal to justify Kantian theory: whether or not Kant is right, his theory of autonomy has been widely adopted in democratic liberalism. This chapter begins with a review of the conceptions of positive freedom before Kant’s time. The Kantian concept is then put forward. The concept is defined and its characteristics outlined, including the categories of will and the categorical imperative. Kantian autonomy’s demand of care is shown, and the essence of autonomy as obligation. In turn, the concept of positive freedom since Kant’s time is examined, including the threats it poses. The rise of freedom and decline of duties in the modern age is considered, as well as the uniting of freedom and duties that Kant’s theoretical system allows.

I Pre-Kantian Positive Freedom The roots of the Kantian concept of autonomy as positive freedom have been traced back to classical Greece. The similarities are evident in the Platonic idea of the rule of the soul’s reason, whereupon the true self emerges. The Aristotelian

44 Freedom and Obligation notion of the development of the virtues also bears similarities to Kantian concepts. The idea of perfection abounds in each. Kant’s definition of autonomy as the capacity to reason has been linked to the Platonic idea of the capacity of the philosophical soul for rational self-rule.8 For Plato, aspects of the soul include appetite and reason. Appetite is like the inclinations in the Kantian system. The philosophical soul’s reason affords mastery over one’s passions.9 Both Plato and Kant aim for reason to surpass one’s appetites.10 A Platonic concept arose akin to Kant’s notion that a wish of the free will is not an ordinary desire, but a wish (boulesis) of the “true self” for its own good.11 Plato (Gorgias 468b–d) raises the question of whether freedom involves doing what you want, or rather, doing what you would want if you possessed a clear understanding of the needs of your soul. A tyrant, who has the power to do anything he desires but cannot control his passions and has neglected the true needs of his soul, is never free (Gorgias 467a, Republic 577e). Also Aristotle’s theories bear resemblance to Kantian moral theory. Aristotle’s identification of choice and rational deliberation as elements of the good life recalls Kantian autonomy.12 The Aristotelian notion of the moral virtues and the Golden Mean are somewhat analogous to the Kantian categorical imperative, as well. Classical Greek thought embodies a perfectionist view of excellences. The philosophers analyze the virtues towards which humans should aim. They study what human nature allows us to be and where we should be. Courage, wisdom and justice, for example, are explored by Socrates.13 Similar to the Platonic goal of perfection and the Aristotelian aim of realizing potentiality, according to Kant a human being is obligated to cultivate his natural perfection: A human being has a duty to himself to cultivate (cultura) his natural powers (powers of spirit [including memory and imagination], mind, and body), as a means to all sorts of possible ends. – He owes it to himself (as a rational being) not to leave idle and, as it were, rusting away the natural predispositions and capacities that his reason can someday use.14 Kantian autonomy calls for the development of intellectual and moral capabilities. Kant’s theory may be deemed perfectionist. Post-Kantian views of freedom as selffulfillment or flourishing recall the classical Greek notion as well.15 In departing from the works of his classical Greek predecessors, Kant’s innovative idea was casting autonomy and the perfectionism it affords as a moral idea.16 For Kant, the idea of autonomous moral rationality is universal. Pursuant to the universality of reason, everyone has the capacity for rational thought. Whereas Plato structures society in Republic whereby the strong (the philosophers) control the weak, Kant takes the notion of the universality of reason to allow rules to be spread equally. It came to be accepted that “great philosophical ability is not required to make rational moral judgments.”17 Morality is present in each of the elements of the Kantian conception. Also the Jewish conceptions of perfectionism and autonomy depart from the Greek notions insofar as they are infused with

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morality. For both Kant and Judaism, the fulfillment of capacity is a moral ideal, rather than a necessity of nature.

II Kantian Autonomy and Universal Law Autonomy is “self-rule.” The word “autonomy” is derived from the Greek stems for “self” (autos) and “law” or “rule” (nomos), and means literally “the having or making of one’s own laws.”18 Kantian autonomy is self-legislation.19 It is “the will’s property of being a law to itself.”20 Autonomy is the capacity to act on rational principles, and freely to exercise the moral reasoning will.21 As autonomy is a capacity of all rational wills, it is universal, possessed by all people. Everyone has it. Kant writes that a free will “must … be attributed to every rational being.”22 Autonomy is not a conditional description of a certain life situation that only some enjoy. It is not empirically present or absent in varying degrees. Conditional conceptions of autonomy – for instance where autonomy is understood to be present only where it is exercised – are to be distinguished.23 A person is not said to be autonomous only if they exercise their autonomy, on a Kantian view. Nor is autonomy an ability possessed only by those who are able to exercise it; a slave has autonomy.24 Upon self-legislation, the autonomous being is not free to choose anything they like. Autonomy is not license. Philosophers who distinguish between desire or wish-fulfillment on the one hand, and choice or freedom on the other, include JS Mill,25 Aristotle,26 and Isaiah Berlin.27 Ronald Dworkin reasons that if liberty is license, or having things one wants or has an interest in, there is no general right to liberty – or it would include a right to vanilla ice cream.28 The agent who acts freely doing what he wants, and the agent whose will is free, are distinguished by Harry Frankfurt.29 Nor is autonomy equivalent to existential choice. While radical existential freedom is independence from morality, Kantian autonomy constitutes morality.30 With the word autonomy, “it is easy for the prefix (auto) to overshadow the root (nomos) … [Yet] autonomy is not another name for personal conscience.”31 While autonomy is often identified with choice,32 on Kant’s theory of autonomy the will determines choice by the giving of universal law.33 Because autonomy is the rational being’s capacity to choose moral obligation, they are bound by obligation. The restricting of freedom by reason leads to the critique that Kantian autonomy is not freedom at all but in effect slavery to objective morality.34 Kant overcomes this quandary insofar as the phenomenological will, the Willkür, indeed may choose evil.35 A. Willkür and Wille Kant identifies two aspects of the will. In Kantian terms, the rational being’s Willkür is the phenomenological will, by which one makes choices.36 Yet the autonomous Wille operates as the legislative function, governing the execution of the law by the phenomenological being upon its Willkür. 37 The will of the intelligible being gives

46 Freedom and Obligation laws for the maxims of actions of the sensible being. The Wille operates by reason and legislates the moral law. Wille cannot fail to be autonomous and legislate morally, however ineffective it may be in controlling the Willkür. 38 Autonomy is the freedom of the will – namely, the Wille. 39 While Willkür Kant calls negative freedom of the will, by contrast, Wille is positive freedom of the will.40 Willkür is freedom from external, heteronomous constraints; but Wille is freedom to self-legislate.41 What then is the difference between autonomous decision-making by the Wille and heteronomous decision-making by the Willkür? Autonomy is possible on the presupposition of freedom of the will to act upon reason. “[T]he will is a capacity to choose only that which reason independently of inclination cognizes as practically necessary.”42 Only an action from duty rather than inclination has moral worth.43 Autonomy is positive freedom, namely freedom from inclinations and the capacity to self-legislate the moral law through reason. By contrast, decisions made from inclination rather than from reason are heteronomous, and yield hypothetical rather than categorical imperatives. Kant describes them as the agent saying: “I ought to do something because I will something else.”44 B. Categorical Imperative Kant names the law that autonomous reason produces the categorical imperative. Positive freedom dictates that individuals follow the categorical imperative of choice, namely “to choose only in such a way that the maxims of your choice are also included as universal law in the same volition.”45 Only by following this principle under moral law is the will a free will. It is the principle of autonomy. Kant writes: [T]he proposition, the will is in all its actions a law to itself, indicates only the principle, to act on no other maxim than that which can also have as object itself as a universal law. This, however, is precisely the formula of the categorical imperative and is the principle of morality; hence a free will and a will under moral laws are one and the same.46 Kant’s argument involves a number of steps. The will causes us to act, and its causality must have a law. A law must follow rules, namely be universal. The free will can only give itself the law to act on no other maxims than that which can be a universal law. A free will is thus a will under moral law. The individual has freedom insofar as all rational beings have the capacity to legislate morality.47 Kant also states the categorical imperative as follows: “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.”48 Kant determines that an “end is an object of free choice.”49 If an agent uses another as a mere means, that agent would be acting on a maxim that the other cannot also adopt, as Kantian scholar Onora O’Neill explains.50 The categorical imperative requires you to do unto others as you would have others do unto you. Charles Taylor believes that indeed

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you would have others treat you as an end, as being able to make choices for action.51 Examples are the principles that would be adopted in the original position, in John Rawls’ theory. The “principles that we would want everyone (including ourselves) to follow” are those that would be adopted by autonomous, namely free and equal rational beings.52 A third formulation of the categorical imperative is that morality consists in actions relating to the making of laws whereby a kingdom of ends is possible.53 As this formulation makes clear, Kant aims towards an ideal.54 C. Care The categorical imperative requires one to respect the autonomy and dignity of others. Because autonomy grounds dignity, all rational beings have dignity – and must show and be shown respect. Critical feminist and communitarian approaches critique liberal views whereby the Kantian man is taken to be the individualist super-hero, believing he can make all moral decisions on his own, unencumbered and disembodied. Yet Kant’s vision of the human is relational. Respect of the other is mandated. I have labeled the categorical imperative a ethic of care.55 Autonomy requires care. The categorical imperative dictates that one cannot make a moral law maxim to guide one’s own behavior without taking into consideration maxims that could be followed by others as well, universally. The second formulation of the categorical imperative – not to use another as a means rather than an end – may also be characterized as requiring care. Using another as a means would entail acting upon a maxim that could not be a universal maxim, as the other would not and could not use themselves as a means rather than an end. Do unto others as you would have them do to you: treat others as an end. Autonomy means obligation to consider the other. Respect is to be offered to and also by the rational agent. Autonomy’s ground of dignity requires that respect be shown to someone; and autonomy requires respect by that person of the other. From the obligation that autonomy demands arise duties. The ethical relations that ensue are comprised of affirmative duties to show respect for the dignity of others. Relations of respect may be labeled care. D. Autonomy as Obligation Insofar as it is the capacity for self-legislating law that follows universal reason, Kantian autonomy obligates morality. Kant writes in the Groundwork of the Metaphysics of Morals that “a free will and a will under moral laws are one and the same” (4:446–7). Dictates of reason restrain autonomous choice. Because only laws that can be universalized may be legislated, these dictates necessitate the moral strictures of the categorical imperative. Autonomy is not choice of what we want, but what we must do according to that law. It is obligation. For Kant, autonomy constitutes obligation. It not only brings or leads to obligation; it is itself obligation. Autonomy, or positive freedom, is the capacity upon reason to make moral laws. And those laws bind.

48 Freedom and Obligation Duty is the key to Kant’s moral theory of autonomy,56 and that duty is to law: “pure respect for the practical law is what constitutes duty.”57 The moral notion of obligation and thereby duties come to the fore. The objective necessity of an action from obligation is called duty. 58 While Kantian autonomy is often associated with rights,59 its basis is obligation.60 Indeed, deontology is associated with rules, principles and the right thing to do, and its meaning in Greek is duty. It comes from the Greek for “what one must do.”61 Nor however must the other extreme carry the day. Kantian autonomy is both universal and particular, as shown earlier. The duty to the other (morality, universal reason) and to others (other people) in which autonomy consists must not eclipse the self. The self is central in Kant’s system, which proclaims the individual’s right to respect. Caution must be taken in shifting the emphasis in autonomy from right to duty, from recipient of care to giver of care. Kantian autonomy upholds both. O’Neill argues that Kantian autonomy is not of persons but rather of principles: the “self” in “self-legislation” of Kantian autonomy is not the individual being, with the self as subject, but is a reflexive referral back to legislation, namely legislation that legislates itself.62 This view may foster presumptions about Kantian autonomy that dilute the emphasis on the individual which it affords. The importance of the self is present for Kant, and strong in the tradition of autonomy as it has developed. Kantian theory is both particular and universal. The universality of reason does not eradicate the self.

III Post-Kantian Positive Freedom Since Kant’s time, the concept of positive freedom has continued to develop. Notions abound about what the nature of humanity “really is” and what people should strive to achieve. Reason, which is the guiding principle of Kant’s system, has largely been replaced by expression. One’s “true” self is intended to express one’s inner self. Moreover, the freedom to define it replaced the duty to fulfill the externally defined “true” self. Here the development of the concept of positive freedom is explored, as well as the threats posed by the concept. Other contemporary theories putting forward positive freedom are in view, and related back to the Kantian concept. A. Reason For Kant, reason defines our true nature.63 Humans are rational beings. All are capable of reasoning, and normatively it is put forward that we are to exercise that capacity. Human intellectual capacities are to be developed, according to Kantian and Jewish thought.64 Kant’s reliance on reason as the essence of humanity and as the pinpoint of positive freedom and morality has been followed by contemporary thinkers as well, such as Frankfurt. Similar to Kant’s theory that with positive freedom a rational being is free from inclinations of the phenomenological self (Willkür), which may

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cloud what reason dictates to the true self (Wille), Frankfurt points to first- and second-order desires of rational thought.65 Other modern conceptions of autonomy rely on the capacity for critical selfreflection, such as is put forward by John Christman.66 Yet a divergence from Kant’s conception is evident: autonomy is sometimes considered to be present only where self-reflection is exercised. For instance in Taylor’s words: “Doctrines of positive freedom are concerned with a view of freedom which involves essentially the exercising of control over one’s life. On this view, one is free only to the extent that one has effectively determined oneself and the shape of one’s life.”67 By contrast for Kant, autonomy relates to the capacity itself. B. Expression What in modern times is considered the essence of humanity, towards which humans ought to strive to perfect? Views have evolved from Kant’s concentration on reason. Other interests and concerns of a human individual are today often considered to reflect the individual’s inner essence. Reason as the mark of one’s inner self and the perfection of the individual has given way to expression. One’s expression reflects the essence of the individual, and their freedom is reflected in their free expression.68 Taylor postulates that because people now place such importance on expressive power to articulate the sense of life, contemporary notions of what it is to protect people’s integrity include that of protecting their expressive freedom.69 Kantian autonomy has lent itself to this contemporary conception of autonomy of expression. O’Neill and others dispute making this connection. Yet I believe it can be seen. Kant’s theoretical moves from self-legislation and self-governance, to self-determination, on to self-fulfillment, self-realization and self-actualization, and then the move to self-expression – which today’s conception of autonomy has become – are developed in Chapter 4. The vision in Jewish thought of autonomy of expression is shown there as well. Autonomy as freedom and obligations of respect is presented in the context of an ethic of communication. C. Freedom Whether freedom of expression or otherwise, it is freedom that has been said to replace reason. In contrast with earlier times, inner human nature has come to be taken as subjectively defined. Perfectionist goals of human development also came to be projected towards the inner soul of each individual. Each person is meant to achieve their identity, and express it. In accord are existentialist theories of freedom as giving each human the ability to define their own nature. Freedom replaced duties. Earlier periods recognized the duty to oneself to aim towards perfection: our true nature was understood to give rise to our duty to fulfill that nature. A duty to others was also embraced – to those with whom one is in relations in society, as well as universal duties. In the modern age, notions of authenticity shed an individual’s attachments to communities. Attachments are

50 Freedom and Obligation deemed to weigh down upon the independence of the individual. With that shift, duties lost their ground.70 As perfectionism gave way to authenticity, with the individual freely defining her unique self in the absence of duties, so too freedom came to be understood as without bounds. Negative freedom replaced positive freedom. Western democratic societies moved away from an external, heteronomous authority indicating to citizens a definition of the Good or virtue, towards the freedom for the individual to define their ends for themself. The move is from the Good to the Right: from a duty to achieve the Good, to the freedom to define the Good for oneself. Berlin describes liberal humanism influenced by Kant as “a form of secularised Protestant individualism, in which the place of God is taken by the … conception of the individual, endowed with reason.”71 Freedom took the place of virtue. The notion of perfectionism aiming towards a “true” inner self receded. As Leo Strauss argues: The good life does not consist, as it did according to the earlier notion, in compliance with a pattern antedating the human will, but consists primarily in originating the pattern itself. … Man has no nature to speak of. He makes himself what he is; man’s very humanity is acquired.72 Strauss ties the recession of positive freedom to the rise of rights and fall of duties. Previous eras maintained the sense of a divine order instructing people’s life choices.73 In modern times the human goal became freedom – and in freedom to define our life goals. Morality has come to be defined in terms of “rights” rather than Right.74 D. Threats The limits on freedom that duties present may pose threats. Berlin explores dangers of positive liberty or positive freedom.75 Although positive freedom calls for self-mastery, limits on freedom may be imposed from the outside. Threats lie where “true” human nature is defined externally, and a coercive force seeks to impose structures towards fulfillment of that “true” human nature. Berlin warns that the duty that positive freedom calls forth has often led to state promotion of a duty that the society or state defines. Berlin has set forth perhaps the foremost critique of positive freedom in modern times. Berlin draws a distinction between negative and positive liberty. Negative liberty involves non-interference: it is freedom from state hindrance. It enables the individual to define their own notion of the Good. Berlin cites Mill’s well-known statement that the “only freedom which deserves the name, is that of pursuing our own good in our own way.”76 Positive liberty is “freedom to.” While this distinction has been critiqued, Berlin responds that the desire for freedom in the sense of negative liberty is close to the human heart.77 Positive liberty enables the individual to attain the Good. It affords the liberty to take control in one’s life and the pursuit of one’s purposes.78 This

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characterization bears resemblance to Kant’s distinction between the phenomenological Willkür as freedom from external, heteronomous constraints, and the autonomous Wille as freedom to self-legislate.79 Also the concerns of Berlin and Kant are similar. With the distaste for heteronomy, Kant seeks to avoid external definitions of the Right. Berlin aims to avoid external conceptions of the Good. Berlin argues that historically, in many situations the Good has been defined externally, and coercion has been used to enforce its pursuit. Berlin explains how this process came about. He believes that the notion of self-mastery was “initially perhaps quite harmless” in pointing to the individual’s rationality and holding that one ought to by oneself – autonomously, and not pursuant to heteronomous control from external sources – decide upon life goals. Yet this notion, resonant of Kantian autonomy, leads to trouble, as forces work to promote it. The self “at its best” is contrasted with irrational impulses, one’s “‘lower’ nature, … or ‘heteronomous’ self, swept by every gust of desire and passion, needing to be rigidly disciplined if it is ever to rise to the full height of its ‘real’ nature.” The next stage comes when the real self may be conceived as something wider than the individual … as a social “whole” of which the individual is an element or aspect: a tribe, a race, a Church, a State. … This entity is then identified as being the “true” self which, by imposing its collective, or “organic,” single will upon its recalcitrant “members,” achieves its own, and therefore their, “higher” freedom.80 Positive freedom, based on the “real” nature of man as rational, holds that freedom is not “freedom to do what is irrational, or stupid, or wrong. To force empirical selves into the right pattern is no tyranny, but liberation.”81 Berlin’s argument is a theoretical one as well as an empirical one. Positive freedom has historically led to despotism. He describes state coercions that resulted from the idea of positive freedom, where external sources defined the good to be pursued by individuals. While positive freedom’s reduction to repression of the individual isn’t necessarily so, the pattern is an empirical factual find. Yet even while pointing to its fault lines, Berlin also acknowledges positive freedom. Berlin writes that we “must give up some of our liberty to preserve the rest.”82 In response to critics, Berlin underscores that he recognizes positive liberty is a “valid universal goal.”83 Maria Dimova-Cookson believes that Berlin’s critique of positive freedom is in the context of decrying the insufficient valuing of negative freedom: Berlin does not fully negate the notion of positive freedom, but goes beyond it. His insight is that besides positive freedom, there exists another freedom – a negative one – and the significance of the latter has been unduly undermined. The value of negative freedom can be seen only when we grasp the limitations and shortcomings of positive freedom. … Berlin’s definition of negative freedom captures the extent to which he also accepts positive freedom.84

52 Freedom and Obligation In addition to the dangerous threat of despotic control to which Berlin raises attention, positive freedom also may be critiqued for a paternalist defining by an outside force of what an individual should become. The idea upon the notion of positive freedom that one ought to take upon oneself restrictions to realize one’s true will, in order to achieve a kind of perfection, is critiqued by Michel Foucault.85 Is negative liberty, then, to remain completely open, and unrestricted? E. Bounds on Freedom Freedom must be bordered. An example that has been put forward to support the rationale of positive freedom is the musician who submits to a regime so as to reach the realization of the goal to play. It is considered freedom to place oneself in a restrictive structure. Berlin writes that after a musician has assimilated the pattern of the composer’s score, and “has made the composer’s ends his own, the playing of the music is not obedience to external laws, a compulsion and a barrier to liberty, but a free, unimpeded exercise. … He has … identified it with himself.”86 A number of thinkers have recognized limits on freedom. A famous quote attributed to George Bernard Shaw proclaims: “liberty means responsibility. That is why most men dread it.” Robert Frost’s statement that one cannot play tennis without a net can be taken more widely than as a comment against writing free verse, but about freedom’s boundaries. Aristotle, JS Mill, and Berlin have been shown to advocate that freedom is not license but has bounds. The 19th-century English idealist TH Green and the New Liberals (known to put forward “social liberalism”) theorize liberalism as limited by perfectionism and the common good.87 A limit is perceived to be set by morality. Positive liberty is identified with actively engaging in moral acts.88 Communitarians argue for limits on freedom as well. Taylor critiques considering freedom as calling for one to find identity by erasing outside influences and external ties. Taylor argues that our lives are thereby flattened and our identities fragmented. Rather than freeing the individual to find their own authenticity, the rejection of demands from anything outside of the self defeats authenticity. Identifying oneself requires one to appropriate values that make up collective horizons. The communitarians have shown that duty to family and community are a strong part of an individual’s distinctiveness. Taylor supports efforts of self-creation, but within a gridwork of moral measurements.89 It is submitted that the duty of respect is a proper limit on freedom. Respect for the dignity of others necessarily restrains freedom, as for instance Dworkin recognizes. The communitarian and feminist view of relations of respect towards others is taken up in Chapter 4. Part II further explores the limits on self-expression that must be recognized in practice, as an aspect of positive freedom.

IV Where to Take Kantian Positive Freedom from Here Given the developments of the concept of freedom since Kantian times, where should the concept of positive freedom be taken from here? It must be appreciated

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that autonomy and obligation, and therefore freedom and duty, are linked – and that that duty is one of respect. The Right can be taken together with the acceptance of moral principles as well as a perfectionist view, even where considered a Good. Right and Good ought to be taken not as rigidly dichotomized, but as functioning side by side. The conception to which Kantian autonomy leads is to be found developed in Jewish thought, which adds further richness to this understanding: the duties of human relations of respect. It is put forward that this view of freedom can be adopted successfully today, where relations in community are global. A. Freedom and Duty In returning to the Kantian origins of the concepts, freedom and duty are joined. Kant does not support existential freedom, but views autonomy as positive freedom bound by the obligation and duties of moral law. For Kant, obligation and duty are part of freedom. The central duty incumbent upon an autonomous being is that of respect. Autonomy requires respect for the moral law and for others. Positive freedom is constituted by obligations of respect. A part of freedom of the self is the duty to respect the freedom of others. Self and other are necessarily in close relation. Duties of respect require affirmative acts of respect in relations towards others. The Kantian categorical imperative that autonomy sets forth requires the consideration of others in legislating universalizable maxims. The duties impact individuals’ behavior and their attachments to others. As seen earlier, autonomy can be termed an ethic of care. Liberty, or negative freedom, also must remain central. The conception put forward here accords with current concerns for freedom. People’s passion for freedom should not (and cannot) be defeated. I disagree with Menachem Mautner’s doubt that liberty lends meaning to lives.90 People shout on the streets for it. Yet as Jeremy Waldron writes, negative liberty alone “suggests that we simply value the absence of obstacles without valuing what may positively exist and thrive in the space that is left when the obstacles are cleared away.”91 Recognition of the duty of respect as an integral part of freedom can add to the meaning of freedom. It is a duty that lies within freedom. B. Right and Good The essence of positive freedom as obligation is apparent from another set of relations generally dichotomized, but that bears common elements: the Right and the Good. These contrasting conceptions are not equivalent but they share commonalities.92 Autonomy is both a Right and a Good. For liberalism, the choice of the good is an individual Right; yet that choice it itself a Good. The Right is the individual’s freedom to pursue their endeavors and freely to determine their own good. The Right is negative liberty, affording the individual freedom from interference. It is deontological. Right affords rights. In contrast,

54 Freedom and Obligation the Good is the pursuit of a goal. The Good is positive liberty, and enables the projection towards perfection. Given its definition of an aim or telos of perfection, the Good is teleological. It affords the duty to project towards that telos. Right and rights have strong rhetorical force. Rights are commonly deemed in the West to be “trumps,” as Dworkin puts forward.93 Rights are valued more than teleological pursuits towards a Good. With Berlin’s praise of negative liberty and warning against the threats posed by positive liberty, a notion of the Good for individual and societal pursuit has been devalued. Yet Right and Good function side by side. Autonomy is a Right, and its essence is obligation; that obligation supports a duty to pursue the Good; hence autonomy is also a Good. As Joseph Raz writes, autonomy is a constituent element of the good life.94 Kantian theory presents both Right and Good. Kantian autonomy has been identified with the Right, and its priority over the Good.95 It is founded upon a notion of the Right thing to do, and principles. The Kantian view of freedom supports rights and duties. Yet the Right for Kant is the good will.96 The good will is good in itself, not a means to an end – such as what it may affect or accomplish.97 The aim towards reaching that Good may be perceived as a telos. 98 Also the Kantian notion of perfectionism presents a teleological aim towards a Good, as presented in the ensuing discussion. Positive freedom as the obligation of respect is both a Right and a Good. It is internal – pointing to the individual’s inner determinations, as well as external – pointing to respect for the other. It is negative liberty, in protecting the individual’s Right and rights. Yet it is also positive liberty, in cognizing a Good to pursue, and setting duties with that aim. The two are not equivalent, but partake of each other in significant ways. Duties of respect are an essential part comprising the freedom and hence the Right of the individual offering the respect, as well as a Right of the recipient of the respect. Moreover, duties of respect are a Good for the individual and society to pursue. C. Perfectionism While perfectionism is deemed a Good and often contrasted with the Right, a perfectionist Good works together with Right and rights in Kantian thought, and as discussed below, in Jewish thought as well. Kantian moral theory is perfectionist in prescribing self-development: autonomy is self-governance through self-legislation, which allows the self-development of one’s capacities.99 Kant writes: “Natural perfection is the cultivation of any capacities whatever for furthering ends set forth by reason.”100 Kant suggests the self-actualization of humanity’s essence.101 Kantian theory is teleological.102 Kant links perfectionism and the kingdom of ends with teleology. In The Metapyhsics of Morals, Kant writes of perfection that “as a concept belonging to teleology, it is taken to mean the harmony of a thing’s properties with an end.”103 In Critique of Judgment, Kant discusses moral teleology.104 Whether as individual perfection or a societal goal, Kant defines one of the formulations of the categorical imperative as a kingdom of ends. Both the individual and society are in a

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teleological pursuit of a kingdom of ends, named as an ideal to which to aspire. It is a telos towards which to aim for the Good. In the kingdom of ends, moral autonomy is fully achieved. The “share [that virtue] affords a rational being in the giving of universal laws … makes him fit to be a member of a possible kingdom of ends.”106 The coexistence in Kantian theory of Right and individual rights alongside the teleological aim of perfection of the Good is present in theories offered by other scholars as well. Autonomy and perfectionism function side by side for instance in Rawlsian theory. Using Kantian method, Rawls’ original position sets people in a discourse towards creating a (perfectionist) society in which individual rights are upheld.107 Raz too has argued that autonomy and perfectionism can coexist.108 Raz develops a notion of personal autonomy, whereby an individual is an author of their life, together with a perfectionist view that permits and even requires the state to encourage and discourage opportunities – and choices of the good.109 Green’s liberal theory supports perfectionism.110 Other views of liberalism and perfectionism are presented for instance by Will Kymlicka111 and Thomas Hurka.112 The contemporary conception of autonomy as self-fulfillment also bears a perfectionist edge.113 The view put forward here of freedom as the duty of respect may be termed perfectionist upon a view of narrow morality. Raz describes the narrow view of morality as comprising restrictions on each person’s pursuit of personal goals in the interests of others.114 Rawls’ view may be understood in this light, upon his argument that principles of justice impose restrictions on conceptions of the good insofar as justice has normative priority over autonomy.115 Respect for dignity follows suit.116 So too liberty may be termed a perfectionist goal upon a narrow view of morality. While liberty is generally taken to be a Right, an individual must respect others’ liberty, and a good society must respect the liberty of all. The necessary pursuits of such respect are a Good. Liberty is a goal, and thereby liberalism a form of perfectionism. Liberty must pursue liberty for all. Liberty itself has the boundary of liberty. Rather than the narrow view, Raz adopts a view of morality and perfectionism supporting “the art of life,” namely the precepts instructing people how to live and what makes for a “successful, meaningful, and worthwhile life.”117 By contrast, the proposed conception does not presume a duty to fulfill a notion of the excellence of human nature, or realization of the individual’s “true nature.” The conception put forward does not set goals of character traits (as was accepted in the classical Greek world). Indeed, the human rationality that is put forward in Kantian and Jewish thought, as well as the humanness of expression apparent in both structures of thought and in modern times, may be deemed character traits or excellences. Yet at issue in the instant analysis is the element of morality in the autonomy of reason and expression. The neutrality often presumed necessary to liberalism may negate perfectionism. Yet liberalism does not in fact require neutrality, as Mill makes clear.118 Liberalism is not neutral about liberty. It upholds liberty as a Good. Similarly, equality is

56 Freedom and Obligation necessary “not because there is no right and wrong in political morality, but because that is what is right,” in Dworkin’s words.119 Hence freedom need not – and indeed may not – be neutral as to principles of Right and rights. Nor is freedom neutral as to the Good. Negative liberty or non-interference is a Good, and freedom requires it. Freedom is not neutral in that regard. Freedom is also not neutral insofar as it entails the duty of respect. On the conception of positive freedom, at the essence of freedom lies the duty of respect. The maintenance of negative freedom as well as the duty of respect following from positive freedom are Goods. Positive freedom is not neutral because it demands both. D. Threats Berlin warns that the state’s definition of a perfectionist good poses a threat. Is it a danger to conceptualize freedom positively, as incorporating the duty of respect? Three responses to the threat are considered, regarding liberty, the state’s law, and morality. The conception of positive freedom is able to withstand these threats. First, the threat that Berlin indicates is reduced by the conception’s affirmation of liberty. Right and rights are maintained alongside the Good. The Good of respect itself includes respect for liberty. The Good is not defined as self-fulfillment of the “true” self. Nor is Raz’s notion of the perfectionism of a morally valuable life put forward here. One is at liberty to define oneself, and the value in their life. Berlin’s fear of coercion from the vision of the Good that positive freedom affords is thereby reduced. Secondly, state coercion is not a necessary outcome. Liberalism may allow perfectionism, but liberalism would not allow the state to define perfection, as Kymlicka argues.120 Hurka too underscores that upon a liberal perfectionist view the state sets rules to promote the perfection of all, and citizens “are then free to concentrate on their own good.”121 Nor must the legal analysis developed in Part II of this book signal a form of state coercion. The discussion there is of values rather than strict legal rights. The constitutional functioning of such values differs from strict legal rights and rules. Dworkin’s theory of using respect to interpret law may accord.122 The third response regards morality. It may be argued that the moral grounding of the proposed conception of positive freedom reflects the Devlinian notion of popular morality, which has been widely criticized. According to Sir Patrick Devlin, the law is to uphold views taken to be moral in the popular imagination.123 Yet my argument and indeed Kant’s is far from a notion of popular morality. Dworkin’s concept of political morality, whereby law is interpreted according to the principles underlying society, is closer.124 Moreover, duties of respect are moral in the way that liberty is a moral principle, and not threatening to liberty. Despite his distinguishing between law and morality, pursuant to HLA Hart’s theory of critical morality the law is to uphold the liberty principle.125 The reliance on morality of the conception proposed here – the morality of freedom and duties of respect – is similar to liberty’s engagement with morality.

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It is proposed that the concept of freedom in Kantian theory be restored, whereby freedom embodies duties of respect. Freedom and obligation, as well as rights and duties, come together. Right and duty are not only correlative, but duty is also part of the essence of freedom and rights. The conception puts forward the duty to respect the freedom of others as both an individual Right and a common Good. For Kant, the perfectionist telos is for both individual and society. Other liberal views uphold rights of the individual as well as the common good. The intricate interrelation of right and duty involves relations between people, as for instance is described at length by Raz,126 and as is developed in Jewish thought. E. Jewish Thought and the Richness of Relations Conceptions similar to Kantian theory are apparent in Jewish thought: freedom linked with obligation calling forth duties of respect; the Right and the Good; and perfectionism. Those elements are briefly set forth here, and developed in the following chapters. Jewish conceptions of freedom and obligation are discussed further in Chapter 3, and the relations of respect ensuing from duties in Chapter 4. It is submitted that elements of Jewish thought can lend further layers to that conception. It can enrich the diminished meaning in contemporary life. (1) Freedom and obligation: Like Kant, Judaism supports not existential freedom but freedom bound by obligation. Jewish thought claims that even without certain knowledge of the divine order, it is for the human to interpret divine guidance towards the right path. That freedom comes along with obligation, which is said to be adopted by choice. Judaism’s vision of positive freedom within the bounds of law is compared to a string of a violin, which is free to move in any direction, but is not free to sing, until it is fixed in place.127 This example is similar to that portrayed above of the musician, whose freedom requires accepting rules of playing the instrument. Jewish thought sets forth an additional aspect to the relationship between freedom and obligation: freedom arises from obligation. Kant too theorizes that “we know our own freedom … only through the moral imperative.”128 Jewish thought attributes joy to the obligations. The fulfillment of duties is not to be deemed a burden, but as promoting freedom. Contemporary culture’s intoxication with freedom may be deepened by the embrace of its essence as obligation, as well as upon awareness of the freedom that obligation affords. Hence the Kantian and Jewish roots add substance to the contemporary conception of freedom. Culture may also be enriched by the relations highlighted in Jewish tradition. While freedom is often understood to regard the self and not the other, Kantian theory and Jewish sources help to recall obligation to the other. Obligation gives rise to duties of relations of respect to others. Jewish tradition is fortified with the fabric of life in relation, as the individual is deeply and extensively involved in relations of respect. (2) Right and Good: As for Kant, in Jewish thought freedom and obligation involve both Right and Good. The vision of justice in Judaism consists of both the Right and the Good. It is made up of moral order and divine commands as well as compassion: the Right and the Good.

58 Freedom and Obligation The term mitzvah (the singular form of mitzvoth) is generally taken to mean a good deed or charity, but it refers to divine commandments, as both a Right and a Good. While it is a necessary principle that is a part of the moral and legal order, it is also a social and individual Good. An aim is projected: all of the mitzvoth are said to be for the good of the people (Deut. 6:24). In the Bible, God is said to instruct humanity to do “that which is good and right in the eyes of the Lord thy God” (Deut. 12:28).129 Both the Right and Good are to function alongside each other. (3) Perfectionism: While Right is deontological, Good bears a teleological purpose. Judaism obligates a perfectionist, teleological aim. The Jewish people are under obligation to fulfill potentiality. What you can do, you must do. The Bible affirms that the Jewish people are capable of becoming holy. 130 That capacity must be fulfilled; it is commanded. The notion of actualization of capacity is developed in Maimonidean thought, upon the perfectionist aim of the individual’s intellectual achievement. Maimonides took the Aristotelian goal of cultivating an ideal, balanced personality and turned it into a religious obligation.131 In Maimonides’ view, for instance, adults have a duty to continue their education beyond childhood, with Biblical study.132 While for Aristotle the move towards fulfillment of potentiality is by the laws of nature, in Judaism, the necessity to fulfill capacity is according to God’s law. The Jewish view is similar to Kant’s underscoring of the capacity to legislate the moral law. In addition to the perfectionist telos prescribed for the individual, a common good is set for society in Jewish thought as in Kantian theory. Jewish law has a “systemic telos” of aiding humanity in its striving for perfection.133 Perfectionism also calls for realization of the halacha in the world (in Joseph Soloveitchik’s terms). The goal for society is to fix the world, tikkun olam, and realize God’s law on earth.134 In this sense Judaism bears teleological elements, in addition to its deontological emphasis on the Right and the individual.

IV Conclusion The recall and refinement of concepts from Kantian theory can have great power. The civil and legal effects of conceiving freedom as obligation are discussed in Part II. Before those effects are explored, discussion in the next chapter turns to Jewish thought. The relationship between freedom and obligation is in view. “[R]estoration of the covenant tradition in an appropriately contemporary way may help … escape the egoism of the Hobbesian jungle,” as Daniel Elazar has argued.135 Covenantal obligation furthers the notion of the duty to relate to others. Those duties are to be fulfilled upon affirmative rather than passive behavior of respect. Expanding the concept of freedom to include duties of respect to others may enhance meaning: it can connect us.

Notes 1 Charles Taylor, “Kant’s Theory of Freedom” in Conceptions of Liberty in Political Philosophy, eds ZA Pelczynski and J Gray (London: Athlone, 1984) 100.

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2 “The self becomes … the entire subject-matter of philosophy … [T]he reflecting self does not just know itself, but in knowing itself knows all selves, and the structure of any and every possible self. The ramifications of this view constitute the transcendent pretence.” Robert C Solomon, A History of Western Philosophy since 1750: The Rise and Fall of the Self (Oxford: Oxford UP, 1988) 6. Whether this transcendence necessitates the view of the self bearing a “transcendental kernel” has been debated by scholars, as discussed in Chapter 4. Kantian epistemology is also derived from the self, as seen in Chapter 1. 3 Gerald Dworkin, Theory and Practice of Autonomy (Cambridge: Cambridge UP, 1988) 13. For Luther, freedom was from the body and its inclinations, as well as freedom to obey divine law. Howard Caygill, A Kant Dictionary (Oxford: Blackwell, 1995) 88–9. 4 Isaiah Berlin, “Two Concepts of Liberty” (Oxford: Clarendon, 1958) in Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford UP, 1969) 138 (the heart of liberal humanism was deeply influenced by Kant and Rousseau); Caygill, A Kant Dictionary 88–9; Allen W Wood, “General Introduction” in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996) xvii. See generally JB Schneewind, The Invention of Autonomy (Cambridge: Cambridge UP, 1998); Taylor, “Kant’s Theory of Freedom” 102–3, 109. Kant’s influence on modern forms of democracy is significant to the analysis in Chapter 6. 5 David AJ Richards, “Rights and Autonomy” in The Inner Citadel: Essays on Individual Autonomy, ed John Christman (New York: Oxford UP, 1989), reprinted from 92(1) Ethics 3 (1981); RH Fallon, Jr, “Two Senses of Autonomy,” 46 Stan L Rev 875 (1994) 878. Kant’s notion has been called the most influential for ethicists. Robin S Dillon, “Íntroduction” in Dignity, Character, and Self-Respect, ed Robin S Dillon (New York: Routledge, 1995) 14. 6 Jeremy Waldron, “Kant’s Legal Positivism,” 109 Harv L Rev 1535 (1996); Ernest Joseph Weinrib, The Idea of Private Law (Cambridge, MA: Harvard UP, 1995). 7 Alice Haemmerli, “Whose Who? The Case for a Kantian Right of Publicity,” 49 Duke LJ 383 (1999); David A Strauss, “Persuasion, Autonomy, and Freedom of Expression,” 91 Colum L Rev 334 (1991); Douglas W Vick, “Deontological Dicta,” 65(2) Modern L Rev 279 (2000) 284; Christina E Wells, “Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court’s First Amendment Jurisprudence,” 32 Harv Civ Rights-Civ Liberties L Rev 159 (1997) 166–7. 8 Plato, Republic iv. Similarity is also to be found with the Stoics. J Christman, “Introduction” in The Inner Citadel, ed Christman 4 (Stoics and Augustine); Paul Guyer, Virtues of Freedom: Selected Essays on Kant (Oxford: Oxford UP, 2016) 6 (early and late Stoics). While seeing analogies between Kant and Plato, Richards understands Plato and Aristotle to have shared the common view of the classical Greeks not of a developed ego with a higher-order integrated plan of life, but of the divided self, with appetites, emotions and intellect isolated as independent agencies on the battlefield of the body. The noble ruler would provide others an order for life. Richards, “Rights and Autonomy” in The Inner Citadel, ed Christman 206–7 (reprinted from 923 (1981) Ethics at 8). 9 Plato, Gorgias. I appreciate the illumination of these parallels offered to me by Pelagia Goulimari. 10 Kenneth Seeskin, “Autonomy and Jewish Thought” in Autonomy and Judaism: The Individual and the Community in Jewish Philosophical Thought, ed Daniel H Frank (Albany: SUNY [State University of New York], 1992) 24–6. 11 Jewish thought carries a similar notion: “like Plato, Maimonides has a conception of the ‘true’ or rational self.” Seeskin, “Autonomy and Jewish Thought” in Autonomy and Judaism, ed Frank 29. 12 Aristotle, Nichomachean Ethics ii.6, iii.2. That on Aristotle’s view deliberative choice as a virtue amounts to freedom, however, is less clear. R Mulgan, “The Ancient

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Greeks” in Conceptions of Liberty, eds Pelczynski and Gray 23; Charles Taylor, Hegel and Modern Society (Cambridge: Cambridge UP, 1979) 156. The distinction between narrow and broad perfectionism, upon the perfection of humanity’s essence or excellences – human nature or objective goods – is not developed here. Thomas Hurka, Perfectionism (Oxford: Oxford UP, 1993) 4. Immanuel Kant, The Metaphysics of Morals (1797) [“MM”] in Practical Philosophy 6:444. The perfectionist aim of both Kant and Judaism are returned to below. Menachem Mautner, Human Flourishing, Liberal Theory, and the Arts (London: Routledge, 2018) 17–40 (on Aristotle, and other thinkers as predecessors). Nathan Rotenstreich, Man and His Dignity (Jerusalem: Magnes-Hebrew Univ, 1983) 53. Novak, “Philosophy and the Possibility of Revelation: A Theological Response to the Challenge of Leo Strauss” in Leo Strauss and Judaism: Jerusalem and Athens Critically Revisited, ed David Novak (Lanham: Rowman & Littlefield, 1996) 178. Also in Judaism, as for Kant, the notion of all humans being created in the image of God grounded equality. Kant would of course have been aware of these ideas. Oxford English Dictionary; Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self, vol 3 (New York: Oxford UP, 1986, 1989) 27–8, n1. Caygill, A Kant Dictionary 207–8. According to Kant, the law that we must acknowledge as binding upon us is “self given.” Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Harvard UP, 2012) 25. Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) [“GMM”] in Practical Philosophy 4:447. GMM 4:412; ibid 4:440. Autonomy is “a property of the wills of all adult human beings insofar as they are viewed as ideal moral legislators, prescribing general principles to themselves rationally, free from moral determinism, and not motivated by sensuous desires.” Thomas E Hill, Jr, Autonomy and Self-Respect (Cambridge: Cambridge UP, 1991) 44; ibid 29. GMM 4:448. See for instance Joseph Raz’s concept of autonomy, discussed below. Regarding the distinction between the unconditional Kantian conception of autonomy and conditional views of autonomy as liberty, privacy, independence or ability, see Kim TreigerBar-Am, “In Defence of Autonomy: An Ethic of Care,” 3(2) NYU J Law & Liberty (2008). Gerald Dworkin, Theory and Practice of Autonomy 14, 105–6; Thomas E Hill, Jr, Dignity and Practical Reason in Kant’s Moral Theory (Ithaca: Cornell UP, 1992) 202 (for Kant a slave has dignity). HJ McCloskey, J.S. Mill: A Critical Study (London: MacMillan, 1971) 104–5; GW Smith, “J.S. Mill on Freedom” in Conceptions of Liberty, eds Pelczynski and Gray 185. Aristotle, Nichomachean Ethics iii.2. Berlin, “Introduction” in Four Essays xxxix. See also HC Frankfurt, “Freedom of the Will and the Concept of a Person” in The Inner Citadel, ed Christman 70. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard UP, 1978) 268, 266–73. Frankfurt, “Freedom of the Will” in The Inner Citadel, ed Christman 63, 70. Hill, Dignity and Practical Reason 80 (distinguishing Sartrean from Kantian autonomy); Richard Wright, “Right, Justice, and Tort Law” in Philosophical Foundations of Tort Law, ed David Owen (Oxford: Oxford UP, 1997) 159, 162. Iris Murdoch recognizes that Kant was not an existentialist: “nor is his man … totally unguided and alone.” Iris Murdoch, The Sovereignty of Good (London: Routledge, 1970) 31. But see ibid 54 (Kantian moral choice is a balance between “a pure rational agent and an impersonal mechanism,” as is much existentialist philosophy). Iris Murdoch’s view of the Kantian autonomous lone man on a rock of isolation is discussed in Chapter 4. Seeskin, “Autonomy” in Autonomy and Judaism, ed Frank 23.

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32 Meir Dan-Cohen, “A Concept of Dignity” in 44 Israel L Rev 9 (2011) 19: “Kant is enlisted to the liberal cause mostly through the centrality to his moral theory of the idea of a free will … [with] a tendency to identify autonomy with choice and to see choice as the seat of dignity as well. On this line of thought [which Dan-Cohen critiques], to respect persons is to respect their choices.” 33 Immanuel Kant, Critique of Practical Reason (1788) in Practical Philosophy 5:33–4. 34 Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986) 370 n2; Feinberg, Harm to Self 35–6. 35 Lewis White Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago: Univ Chicago Press, 1960) 227; Hill, Dignity and Practical Reason 79; Ralph CS Walker, Kant: The Arguments of the Philosophers (London: Routledge and Regan Paul, 1978) 147. Another response to this critique is Taylor’s analysis that Kantian autonomy is freedom in acting according to our true nature as rational beings. Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, MA: Harvard UP, 1989) 363. Yet this solution has been called dangerous and paternalistic by Berlin and Michel Foucault, as discussed below. 36 GMM 4:446. 37 MM 6:214, 6:226. 38 Beck, Commentary 201–3; ibid 180, 196–8. 39 Walker, Kant 148. 40 GMM 4:412, 4:446. 41 Caygill, A Kant Dictionary 207–8. Compare Berlin’s notion of positive and negative liberty, in Berlin “Two Concepts.” 42 GMM 4:412. 43 GMM 4:498–9. For comparison to the Jewish law principle of lishmah, see Chapters 3 and 4. 44 GMM 4:441. 45 GMM.4:440. 46 GMM 4:447. 47 GMM 4:461. The universal principle of the categorical imperative is only possible on the presupposition of freedom of the will. Ibid. Kant has been accused of using circular reasoning. Murdoch writes that Kant assumes freedom because of the existence of the moral law, and then proves the reality of the moral law through the concept of freedom. Iris Murdoch, Metaphysics as a Guide to Morals (London: Chatto and Windus, 1992) 438; see also Walker, Kant. Whether Kant successfully resolves that circularity is not addressed here. See GMM 4:450, 4:453. 48 GMM 4:429. 49 MM 6:384 (emphasis in original); see also MM 6:381. 50 Onora O’Neill, Construction of Reason: Explorations of Kant’s Practical Philosophy (Cambridge: Cambridge UP, 1989) 138. 51 Taylor, Sources of the Self 363. 52 John Rawls, A Theory of Justice (Cambridge, MA: Harvard UP, 1971) 453, 226. On Rawls’ theory autonomy also gives rise to obligations of respect, ibid 454–6. See also Dworkin, Taking Rights Seriously 150–85. 53 GMM 4:436. Walker assesses the formulations as “essentially equivalent.” Walker, Kant 159. 54 Kant asserts that the kingdom of ends is “admittedly only an ideal.” GMM 4:433. It is a perfectionist aim. See also Taylor, “Kant’s Theory of Freedom” 108–9 (the ideal for Kant lies in the kingdom of ends; but being free is recognizing that this is our ideal). 55 Treiger-Bar-Am, “In Defence of Autonomy.” Stephen Darwall identifies respect as valuing someone intrinsically, while care is sympathetic concern for someone’s benefit. Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard UP, 2006) 126.

62 Freedom and Obligation 56 Onora O’Neill, Autonomy and Trust in Bioethics (Cambridge: Cambridge UP, 2002) 83, and generally 73–95; Onora O’Neill, A Question of Trust (Cambridge: Cambridge UP, 2002) 32–5, 96, 99; O’Neill, Construction of Reason 81–165. 57 GMM 4:403. 58 GMM 4:439. Kant defines duty as “that action to which someone is bound” and “the matter of obligation,” and defines obligation as “the necessity of a free action under a categorical imperative of reason.” MM 6:222. For an alternative understanding of obligation as suggesting a promise and associated with personal moral standards, in contrast with duty as implying the demands of an office, see RB Brandt, “The Concept of Obligation and Duty,” 73 Mind 374 (1964). In Jewish thought obligation may be seen as that which one takes upon oneself, given the Hebrew reflexive term (hithayvut), as put forward in Chapter 3. 59 For example, Ernest J Weinrib, “Private Law and Public Right,” 61(2) Univ Toronto LJ 191 (2011) 194 (“Kant was, perhaps, the greatest expositor of the systemic significance of rights as expressions of human freedom”). The priority of the Right or Good for Kant is discussed below. 60 Weinrib discusses Kant’s view of rights as “(moral) capacities to put others under obligation,” referring to MM. Weinrib, The Idea of Private Law 122–3. “For Kant, freedom itself implies juridical obligation.” Ibid 19; ibid 152 (a right must be consistent with others’ rights). 61 Bernard Williams, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard UP, 1985) 16. 62 O’Neill, Autonomy and Trust 85. 63 Taylor, Sources of the Self 363 (for Kant “acting morally is acting according to what we truly are, moral/rational agents”). 64 Maimonides refers to the perfectionist aim of the intellect actualizing its potentiality (Maimonides, Guide for the Perplexed 3:27), as seen in Chapter 1. 65 Frankfurt, “Freedom of the Will” in The Inner Citadel, ed Christman. See also Joseph Raz, “Attachments and Associated Reasons,” Oxford Legal Studies Research Paper No. 59/2011. Moshe Sokol deems Maimonides to distinguish between the choice of the deep self and the inner self. Moshe Sokol, Judaism Examined: Essays in Jewish Philosophy and Ethics (New York: Touro College, 2013) 152. “Internalist rationality” has been deemed to rely on a view of positive freedom. John Christman, “Liberalism and Individual Positive Freedom,” 101 Ethics 343 (1991). 66 John Christman, “Saving Positive Freedom,” 33 Political Theory 79 (2005) 87. 67 Charles Taylor, “What’s Wrong with Negative Liberty?” in The Idea of Freedom, ed Alan Ryan (Oxford: Oxford UP, 1979), reprinted in Contemporary Political Philosophy: An Anthology, eds Robert Goodin and Philip Pettit (Oxford: Blackwell, 1993) 388. 68 Lawrence M Friedman, The Republic of Choice: Law, Authority and Culture 35 (Cambridge, MA: Harvard UP, 1990). 69 Taylor, Sources of the Self 25; ibid 18. 70 Obligations generally are deemed weights; we speak of being “under an obligation” or “bearing an obligation.” HLA Hart, “Legal Duty and Obligation” in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon, 1982) 131. In Chapter 4 an alternative meaning of the Hebrew word for heaviness is examined, which is linguistically related to the term for dignity. 71 Berlin, “Two Concepts” 138. 72 Catherine Zuckert, “Strauss’s Return to Premodern Thought” in The Cambridge Companion to Leo Strauss, ed Steven B Smith (Cambridge: Cambridge UP, 2009) 98 (citation omitted). 73 Religion became privatized. Jonathan Sacks, One People? Tradition, Modernity, and Jewish Unity (London: Littman Library of Jewish Civilization, 1993) 172.

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74 Zuckert, “Strauss’s Return” 98. On rights (as moral property) and right (as a moral code), see HLA Hart, “Are there any Natural Rights?” 64(2) The Philosophical Review 175 (1955) 182. 75 Berlin uses the terms liberty and freedom interchangeably. Berlin, “Two Concepts” 131. 76 Ibid 172. The original passage appears in “Introductory” in John Stuart Mill, On Liberty (London: Longman, Roberts & Green, 1869) 13. See John Gray and GW Smith, J.S. Mill On Liberty in Focus (London: Routledge, 1991) 33; Collected Works, vol 18 (on-line library, U Toronto) 226. 77 GC MacCallum, Jr, “Negative and Positive Freedom,” 76 Philosophical Review 312 (1967). MacCallum argues that in contrast to the Berlinian dichotomy between positive and negative liberty, there is one basic concept of freedom, which bears a triadic relation. Any statement about freedom can be understood in terms of (what is free or unfree, as well as) from what it is free or unfree, and to what it is free or unfree to do or become. Berlin responds that a “man struggling against his chains or a people against enslavement need not consciously aim at any definite further state. A man need not know how he will use his freedom; he just wants to remove the yoke. So do classes and nations.” Berlin, “Introduction” in Four Essays xliii footnote. 78 Berlin, “Two Concepts” 131. 79 Caygill, A Kant Dictionary 207–8. 80 Berlin, “Two Concepts” 132. Berlin also speaks of the great cry for recognition and status within a group, which sometimes is identified with freedom. Ibid 157. 81 Ibid 148. Berlin writes specifically with regard to the dangers that Kantian theory poses. Ibid 153. 82 Ibid 126. 83 Berlin, “Introduction” in Four Essays xlvii. 84 Maria Dimova-Cookson, T.H. Green’s Moral and Political Philosophy: A Phenomenological Perspective (New York: Palgrave, 2001) 121–2. 85 Michel Foucault, “Éthics, Subjectivity and Truth” in Essential Works of Foucault, 1954–1984, ed Paul Rabinow, vol 1 (New York: The Free Press, 1997) 24. 86 Berlin, “Two Concepts” 141. 87 TH Green, Prolegomena to Ethics, ed AC Bradley (1883)(Oxford: Clarendon, 2003) §216, at 250; Hurka, Perfectionism 23 (Green defines freedom in the positive sense as the maximum power for all members of society alike to make the best of themselves); Mautner, Human Flourishing 29–30. 88 Dimova-Cookson, T.H. Green’s Moral and Political Philosophy 123. Green’s theory of the common good is the pursuit of the moral good and bracketing of self-centered motivation. Ibid 86. 89 Charles Taylor, The Ethics of Authenticity (Cambridge, MA: Harvard UP, 1991) 25–9; ibid 41 (“authenticity is not the enemy of demands that emanate from beyond the self; it presupposes such demands”). Critiquing the ideal of detachment, Taylor writes that in modern culture, individualism is said to be without reference to a defining community. Taylor, Sources of the Self 36. 90 While I applaud Mautner’s attempt to reconsider the sphere of liberal perfectionism, and share his view that autonomy is both a right and a good, I believe that freedom may indeed supply meaning (what he terms both “deep meaning” and “big meaning”). Mautner, Human Flourishing 158–65. 91 Jeremy Waldron, “Autonomy and Perfectionism in Raz’s Morality of Freedom,” S Cal L Rev 1097 (1989) 1104. The critique of rights going too far is taken up in the Introduction to Part II. 92 Berlin’s response to MacCallum’s critique of the distinction between freedom to and freedom from described earlier may be helpful in seeing the difference and yet the similarity between Right and Good. 93 Dworkin, Taking Rights Seriously. 94 Raz, Morality of Freedom 408.

64 Freedom and Obligation 95 Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge UP, 1982) 5, 7; Rawls, A Theory of Justice 31 n16 (“The priority of right is a central feature of Kant’s ethics”), 43 n23; Weinrib, The Idea of Private Law 87, 109–12. As Weinrib underscores, this does not mean that Right is better than Good, but that it is conceptually prior. Ibid 112. 96 GMM 4:393 (a good will). 97 GMM 4:394–6. The Good is an end not means, but is accessible through means. 98 Kant’s teleological pursuit of the Highest Good can be taken as an external aim, and hence heteronomous, as argued in Chapter 1. 99 GMM 4:423. See also MM 6:444. 100 MM 6:391 (emphasis in original). The section containing this passage is entitled: “On a human being’s duty to himself to develop and increase his natural perfection, that is, for a pragmatic purpose.” 101 GMM 4:430. Yet Kantian theory is essentialist rather than consequentialist. Kantian autonomy is constituted by the capacity to self-legislate, rather than the exercise of the capacity for its fulfillment. This is especially evident insofar as the autonomous being can choose evil. On Kant’s non-consequentialist view, see Hurka, Perfectionism 59. On non-consequentialist teleology, see John Tasioulas, “Taking Rights out of Human Rights,” 120 Ethics 647 (2010) 675–8. 102 Caygill sees Kant as referring to ends. Caygill, A Kant Dictionary 388 (all moral judgments are determined by an end). Perfection is a duty. David O Brink, Perfectionism and the Common Good: Themes in the Philosophy of T.H. Green (Oxford: Clarendon, 2003) 83 (Kant holds that one has a duty to oneself to promote one’s own perfection rather than happiness; and a duty to others to promote their happiness rather than their perfection). Berlin critiques Kant’s “counsel of perfection” (Berlin, “Two Concepts” 153), yet sees Kant approaching the idea of negative liberty in calling nature’s highest purpose the establishment of a society possessing the greatest liberty, ibid n1. See also Thomas Auxter, Kant’s Moral Teleology (Macon, Georgia: Mercer UP, 1982). 103 MM 6:386. 104 Immanuel Kant, Critique of the Power of Judgment, eds Paul Guyer and Eric Matthews (Cambridge: Cambridge UP, 2000) 5:359 (“Critique of the Teleological Power of Judgment”), 5:447 (moral teleology). The 18th century presupposition of a teleological scheme of God lent a historical backdrop to Kant’s acknowledgement in his second Critique that the project of morality is teleological. Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Bloomsbury Academic, 1981) 53. 105 In Kant’s words, it is “admittedly only an ideal.” GMM 4:433. 106 GMM 4:435 (emphasis in original); ibid 4:436* (on teleology). 107 Rawls, A Theory of Justice 328–9 (“justice as fairness allows … perfections to be pursued within the limits of the principle of free association”). 108 Raz, Morality of Freedom. Damico critiques Raz’s liberal perfectionism. Alfonso J Damico, “What’s Wrong with Liberal Perfectionism?” 29(3) Polity 397 (1997) 399, 403–10. 109 Raz, Morality of Freedom 204, 370, 417. Raz distinguishes his view of personal autonomy regarding a person’s choices for their life from Kant’s moral autonomy, which is a doctrine on the nature of morality. Ibid 370 n2. 110 Green, Prolegomena to Ethics §216, at 250. Brink 88 (“Green’s perfectionist liberalism is part of a classical liberalism tradition; forcefully articulated by Mill, which grounds liberal essentials in a conception of the good that prizes exercise of a person’s rational capacities”). On Green’s vision of perfectionism and liberalism, the right and the good, and individual and society, see Avital Simhony, “T.H. Green’s Complex Common Good: Between Liberalism and Communitarianism” in The New Liberalism: Reconciling Liberty and Community, eds Avital Simhony and D Weinstein (Cambridge: Cambridge UP, 2001).

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111 Will Kymlicka, “Liberal Individualism and Liberal Neutrality,” 99(4) Ethics 883 (1989) 896–7. 112 Hurka, Perfectionism 147–8. The view proposed here differs from Hurka’s defense of a consequentialist view of autonomous perfectionism. Ibid 57–60. 113 On autonomy as self-fulfillment, see Joel Feinberg, Freedom and Fulfillment (Princeton: Princeton UP, 1992). 114 Raz, Morality of Freedom 213. 115 Waldron interprets Rawls in this way. Waldron, “Autonomy and Perfectionism in Raz’s Morality of Freedom,” 62 S Calif L Rev at 1133, citing Rawls, A Theory of Justice 31. 116 Dan-Cohen puts forward a dignity principle rather than the harm principle as the preeminent liberal value. Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (Princeton UP, 2002) 150–1. 117 Raz, Morality of Freedom 213. It appears to me that Raz’s notion of “judging a person’s well-being [by] judging the success or failure of his life” (ibid 289) and “evaluating success in life” (ibid 295) faces the threats of which Berlin warns. Nor do I share Raz’s view of autonomy as depending upon options for choice. Ibid 204 (“A person is autonomous only if he has a variety of acceptable options available to him to choose from”). Raz views personal autonomy as surrounding both capacity and exercise, and options as necessary for exercise. Rather, I rely upon Kant’s view of autonomy as one of inherent capacity rather than exercise. Treiger-Bar-Am, “In Defence of Autonomy.” According to Raz, the autonomy principle requires government to create morally valuable opportunities (ibid 417), and depriving people of opportunities causes harm (ibid 413). Similarly, Christman argues that educational, social, and personal resources are necessary to allow the capacity for choice to develop. Christman, “Saving Positive Freedom” 87. Socio-economic and educational positive right and duties are discussed in the Introduction to Part II. 118 Neutrality is rejected by Mill, for whom a “person’s choosing badly justifies ‘remonstrating’ and ‘reasoning’ with her.” Hurka, Perfectionism 159, citing JS Mill, On Liberty in Utilitarianism, Liberty and Representative Government (London: JM Dent, 1910) 73, 133. 119 Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard UP, 1985) 203. 120 Kymlicka, “Liberal Individualism and Liberal Neutrality” 896–7. 121 Hurka, Perfectionism 66. Hurka writes that Aristotelian perfection requires that “each person’s achievement of perfection must be his own.” Ibid 152. 122 Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard UP, 2011). 123 Patrick Devlin, The Enforcement of Morality (London: Oxford UP, 1965). 124 Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard UP, 1996). Berlin too acknowledges societal values other than negative liberty, which is not absolute, and calls basic values presupposed by notions of morality. Berlin, “Introduction” in Four Essays lvi, liii. 125 HLA Hart, Law, Liberty and Morality (Stanford: Stanford UP, 1963). 126 Raz, Morality of Freedom 215 (the importance for each to understand her goals in ways that relate to others’ goals), 216 (relations “are among the most valuable and rewarding aspects of many people’s lives. … Collective goods … provide the source both of personal goals and of obligations to others”). 127 Louis Jacobs, The Book of Jewish Belief (Springfield: Behrman House, 1984) 29. Freedom requires that other freedoms are given up. For instance, the freedom to be a doctor requires sacrifice of time and effort. Ibid. 128 MM 6:239. 129 See also Deut. 6:18 (“And you shall do that which is right and good in the sight of the Lord”). The renowned early Talmudic sage Yehuda Hanassi spoke of the right (or straight) path in Ethics of the Fathers 2:1. The meaning of the terms Right and Good in Hebrew in political and legal discourse is not presumed here.

66 Freedom and Obligation 130 Exodus 19:5 (God says: If you abide My commandments, you shall become a special people); Leviticus [“Levit.”] 19:2 (God instructs that the people of Israel shall be holy, for God is holy)(emphasis added). These passages are both sometimes mistranslated as indicating that the Jewish nation is holy, or the “Chosen People.” Rather, the people are instructed – in future tense – to fulfill their potentiality and become holy. The people have the ability (mesugalut) to become a special nation (segula, with the same linguistic root), given that they have the tools: the Torah. I thank Rabbi Zvi Elon for the insight upon this grammatical analysis. 131 Micah Goodman, Maimonides and the Book that Changed Judaism: Secrets of the Guide for the Perplexed (Philadelphia: Jewish Publication Society, 2015). 132 Maimonides, Mishneh Torah [“Code”]: Laws of Torah Study 1:8. 133 Robert M Cover, “Obligation: A Jewish Jurisprudence of the Social Order” in Law, Politics, and Morality in Judaism, ed Michael Walzer (Princeton: Princeton UP, 2006) 7. Maimonides understands the obligations of mitzvoth in this light. Ibid 7–8. Hermann Cohen asserts that as a moral agent, God must help others in their quest for perfection. Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 170. The doctrine of lishmah, described below, does not propose a telos. 134 Joseph B Soloveitchik, Halakhic Man (Philadelphia: Jewish Publication Society, 1983) 41 (“to purify this world”); Gershom Scholem, Kabbalah (Jerusalem: Keter Publishing House, 1988) 138–43; ibid 142 (according to the Lurianic school of kabbalah, “certain concluding actions” of the tikkun of the broken vessels from the time of creation of the world “have been reserved for man”), 165. 135 Daniel J Elazar, Covenant & Polity in Biblical Israel: Biblical Foundations & Jewish Expressions – Covenant Tradition in Politics, vol 1 (New Brunswick: Transaction, 1995) 5–6.

3

Obligation as Freedom: Jewish Thought

As for Kant, also in Judaism freedom and obligation are inextricably linked. Kantian autonomy is the capacity of self-legislation, and hence at its essence is obligation to the moral law. For Jewish thought, freedom and obligation are together on a continuum. While the reigning myth of Western democratic liberalism is based in the rhetoric of individual rights, the myth of Sinai in Judaism is based in the rhetoric of fulfilling commands, and communal obligations.1 Indeed the obligation to God’s command and duties to others are central in Judaism. Yet obligation can only be taken on in freedom. Moreover, from obligation arises freedom. Freedom and obligation are part of a united whole. The dialectical tension between them is inescapable. Neither can function on its own without the other. Again here, as with the analysis of Kantian theory, my intent is not to justify the perception that Judaism maintains, but to explore it. Nor is a religious view put forward, but principles of Jewish thought that are widely felt in culture and law. The order of the relation of the concepts may appear to be in the reverse for Kant and in Judaism. While for Kant autonomy is obligation, in Judaism obligation is freedom. Yet in fact this seemingly reverse direction is in the reverse: Kantian theory is based centrally on obligation, and in Jewish thought freedom is prior. The human is born free, and only in freedom may obligation be taken on. Nonetheless, in discussion here the order of analysis of the concepts (and their relation) is based on the common presumptions of the structures of thought, namely the discussion of Kantian theory begins with autonomy, and the analysis of Jewish thought moves from obligation to freedom. Dominant paradigms of obligation in Judaism are the binding of Isaac (akedah) and the receipt of the Torah at Mount Sinai. Kant refers to both.2 The historical accuracy of these biblical accounts is not here at issue, but rather the strong resonances they bear in Jewish tradition. In both the akedah and Sinai narratives, and in the traditions that have grown around them, elements of freedom come forth. Here the akedah story is explored with regard to obligation and relationship, and the Sinai Covenant with regard to the covenantal partnership. Obligation and freedom are under review. Given the presumed order of priority in Judaism, discussion begins with obligation. Before the centrality of freedom in the Jewish tradition is considered, the nature of obligation that it entails is

68 Freedom and Obligation explored. The first part of the chapter investigates the nature of obligation by considering the binding of Isaac, and the principle of lishmah – fulfilling commands because they were commanded. The Covenant is then in view, and the notion of a covenantal relationship. Obligation is shown to bring freedom. The second part of the chapter turns to freedom. Judaism holds fast to the idea of free will. Autonomy is shown to come forth beyond the choice involved in acceptance of Covenant, through interpretation of God’s law. In each aspect of obligation explored, freedom arises; and in each aspect of freedom, obligation and duties arise. A discussion of the ethical bounds that freedom requires closes the chapter. The duties of respect towards others deriving from freedom and hence obligation are addressed in the next chapter. Relations are a keystone of human freedom: human freedom in Jewish thought is not a stark solipsistic individualism, but understands the human in a community of relations, with a vision of the common good. The practical effect of the relation of rights and duties is examined in Part II.

I Judaism and Obligation In Judaism, to what degree are Jews subordinate in obedience to a master? Biblical Hebrew does not have a word for obedience. There is a tzivui (command) to perform the mitzvoth (a term linguistically related and often used to mean good deeds), but there is no term for “obey.” The modern Hebrew term was taken from Arabic.3 Nonetheless, traditions of obligation are certainly found in Judaism. Obligation implies the freedom of taking on the obligations, which obedience does not. The Hebrew term (hithayvut) is reflexive, showing that one takes an obligation upon oneself. Moreover, in what are presumed to be commands of obedience the complexity of relations between God and the people shine forth, as apparent in the biblical narratives of the binding of Isaac and the Covenant at Sinai, as well as rabbinic musings regarding fulfilling the laws. A. Binding of Isaac: Akedah An archetype of acceptance of obligation to God is the akedah story: the tale of the binding of Isaac (Genesis 22). In the biblical narrative, Abraham submits to God’s command to raise his son Isaac up to a mountain, and Abraham responds by preparing for the offering of Isaac as a sacrifice. The narrative ends with an angel of God stopping Abraham’s hand in order to prevent the slaughter, and showing Abraham a ram caught in a bush nearby to be offered as a replacement sacrifice. The Bible portrays the command as a test of Abraham’s faithfulness to God, and the tale as a sign that Abraham’s acceptance of God’s word was unconditional. Kant takes issue with the akedah tale, critiquing Judaism’s call for heteronomous obedience to the divine voice. Kant uses the biblical narrative of the akedah as pointing to Abraham and henceforth the Jewish people taking on God’s command even where it conflicts with morals. Kant argues that the account lends

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a platform for critique of revelation, of whose sources we cannot be sure – and Abraham could not have been sure. Kant ties this to the immorality of the command. If a voice commands someone to do something contrary to the moral law, that person must consider it an illusion. Abraham should have replied to the supposedly divine voice: “That I ought not to kill my good son is quite certain. But that you, this apparition, are God – of that I am not certain, and never can be, not even if this voice rings down to me from (visible) heaven.”4 Yet in Jewish tradition, a number of other aspects come to the fore. Freedom is presumed infused insofar as God would not have tested Abraham, had Abraham not had the free choice to refuse God’s order. For example, Jewish tradition portrays Abraham as asking of God interpretive questions in a challenging fashion.5 These questions of Abraham are adjoined to the text of Genesis 22:2: “And God said: ‘Take now thy son [Abraham: Which one?], thine only son [Abraham: I have two], whom thou lovest [Abraham: I love both], even Isaac.’” Interpretation also allows for the command to literally be to “take Isaac up” to the mountain, rather than to bind him for sacrifice. The extensive interpretations of the tale themselves show the strength of the freedom of interpretive traditions in Jewish sources. Jewish thinkers have offered perspectives of the akedah showing a response other than strict obedience on Abraham’s behalf. Elie Wiesel depicts the story as presenting Abraham’s challenge to God: defying God to test if God will remain passive.6 To the degree that Abraham can be said to have acted out of his own choice to fulfill the command,7 he has been criticized by some rabbis as having made the wrong choice.8 Other rabbis emphasize that the test Abraham withstood was being able to hear the angel’s call to cease the practice of child sacrifice. Abraham was commanded to the sacrificial rite by the aspect of God in biblical tradition signifying the God of nature (Elohim) (Genesis 22:1, 8, 9) – thought to include contemporary culture, where child sacrifice was common.9 Moreover, the akedah story bears witness to both self and the other; it exhibits a relational aspect of the Jewish people’s interaction with God and also with other people. When called by God, Abraham responds by saying, “I am here” (hineni). Also when called by Isaac as they ascend the mountain, Abraham responds with the same words, “I am here” (hineni). Abraham and Isaac are said twice to walk together (Genesis 22:6 and 22:8). Abraham is arguably in full relationship with both, in the akedah event.10 Abraham was told to cease the rite of sacrifice by the aspect of divine signifying God’s personal relationship with humanity (YKVK) (Genesis 22:11, 14, 16). Soren Kierkegaard uses the akedah narrative to outline a conflict between the ethical and divine order. Kierkegaard calls the event a teleological suspension of the ethical, as Abraham takes on religious commands over ethical ones. Yet in Jewish thought the akedah is not understood to present this divide. Joseph Soloveitchik’s response to Kierkegaard lies, rather, in the dialectical tension that the Bible and halacha present between autonomy and submission.11 Emil Fackenheim

70 Freedom and Obligation reasons as follows: “The revealed morality of Judaism demands a three-term relationship – nothing less than a relationship involving man, his human neighbor, and God Himself.”12 In addition to the narrative account portraying relationships both human–God, and human–human, the Jewish tradition’s treatment of the akedah does, as well. The akedah tale binds Abraham and God, and binds the people with God for all time. The narrative is recalled at prayer services on the Jewish New Year, called the Day of Remembrance, and hence functions to bind the people together. Narrative stories through Judaism’s centuries-old tradition of midrash portray Isaac reminding Abraham of how his acts will affect relationships in the family and with God.13 The tale is said to instruct Abraham and all of humanity as to the responsibility for continued relations.14 In the lessons that the rabbis draw from the akedah, a further element of the relationship between the Jewish people and God arises: the educational one. All commandments (mitzvoth) have been interpreted to educate and perfect, and indeed the akedah has been termed educational on many levels. The command has been interpreted as a tool to teach Abraham the passion of faith,15 to teach future prophets to trust the visions of their imagination,16 and to teach the world that the then widespread practice of child sacrifice must come to an end.17 Thus while it is complex, the akedah narrative tells a fuller story than one of blind obedience.

1) Lishmah The severity of the akedah command recalls the nature of obedience adopted in the rabbinic doctrine known as lishmah. On this principle, a command is to be followed only because it has been commanded, and not arising out of another motive. Pursuant to this perspective, a Godly command is not to be evaluated for its accordance with other values. Nor is the reason for it to be sought. Rather, it is to be followed only for the sake of following the command.18 The acceptance of God’s command on this tradition resembles the Kantian theory whereby intent and behavior follow duty alone. Only following a duty because it is a duty is valued morally.19 If someone visits the sick because they want to, they are acting heteronomously in following their inclinations; Kant views the deed produced by that intent as not a moral act. Also according to the lishmah tradition in Judaism, greater value abides the fulfillment of a command without any ulterior motive. The Talmud records a view that “he who is commanded and fulfills [the command] is greater than he who fulfills it though not commanded.”20 Fulfilling the command because one wants to is less valued. Jewish thinkers discuss the case of a blind person who is excused from certain commandments but still wants to perform them. They query: is it better to observe commands because one is required to do so or because one has to, physically? An answer given is that it is more valued to perform a mitzvah because it is required, and solely out of duty – lishmah. 21 The Sages teach the primacy of fulfilling a duty because it is commanded rather than voluntarily.22

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Another example of the debate surrounding lishmah regards the commandment not to take young birds from a nest while the mother bird is present and watching.23 Some rabbis consider the reason for the commandment to be mercy to the mother bird. Yet one Talmudic opinion holds that the law is not about mercy, but is to be followed simply because it is a decree. In modern times, eminent Jewish philosopher Yeshayahu Leibowitz affirms the position that Judaism requires that God’s commands be followed solely for their own sake, rather than for their morality.24 This tradition indeed exists in Judaism, and I do not intend to disregard it in my examination of obligation and freedom in Jewish sources. It is to be noted, however, that even upon the strict lishmah principle of obedience, Jewish tradition affirms human interpretation of the law. Divine commands are to be adopted without evaluation – and for their own sake, rather than another motive, on some views – but are subject to interpretation. Moreover, many of the commandments that some rabbis deem to be fulfilled lishmah are perceived by other rabbis as commanded in order to teach mercy. According to Nahmanides, the commandment prohibiting taking eggs from the nest while the mother bird watches may not be a matter of mercy to animals, but is a lesson in mercy for people.25 Maimonides understands the reason of the commandment as the teaching of good morals, as seen earlier. Maimonides deems all of the mitzvoth to educate humanity; so too the principle of lishmah is said to promote human perfection. The fulfilling of a command, even where the actor does not have the proper intent, will lead to its fulfillment with the proper intent.26 By performing a mitzvah by rote, one will be led to performing it for its own sake.27 B. Covenant The giving of God’s laws at Mount Sinai has been called the central concept of the Jewish faith. The Covenant also has been said to influence the model of the social contract at the basis of law and political order.28 The myth of Sinai created legitimacy for a radically diffuse system of authority, for a people without a state for 2,000 years.29 Obligation is surely present, yet the Covenant and covenantal relationship are suffused with freedom. The Covenant was offered to the Jewish people after their exodus from slavery in Egypt (Exodus 20–1). The giving of the law, in both the Tablets of Stone and the legal provisions recorded thereafter in the biblical narrative, ensued after the Jews’ freedom was attained. In addition to the temporal chain, taking upon oneself legal obligation is only possible once someone is free. One cannot be held responsible without freedom. It was possible for the Jewish people to take on the laws only after they were freed, as moral obligation requires freedom. There is no law without freedom, as Nahmanides states.30 Also Maimonides writes that “without freedom, the whole edifice of law and responsibility falls to the ground.”31

72 Freedom and Obligation Was the giving of God’s commandments at Mount Sinai an act of coercion? Were the Jewish people forced to accept them? Some thinkers take the position that this was so. On some rabbinic opinions it was later acceptances of the Covenant that were taken on in freedom and by choice. Joseph Soloveitchik holds that the Covenant poses a dialectical tension between sovereignty and submission, and shows both. The Covenant was and continues to be built in relation between the people and God, as David Hartman teaches. Covenantal relations are those of partnership. These aspects of the Covenant, each of which manifests obligation as well as freedom, are considered in turn. 1) Coercion Some rabbinic renderings depict the Jewish people as having been coerced into accepting the Torah. The Jewish people’s response to God upon the call of divine command was “naaseh venishma” (Exodus 24:7). The phrase is often translated as indicating that the people would “do and hear” the commands, and as signifying that they would obey before considering the laws.32 As such, the adoption of God’s moral commands can be perceived as adherence to an external commanding voice. It is heteronomous behavior, in accordance with Kant’s complaint regarding Judaism. There is a perspective that the people had no real choice. They had just been slaves, and were then in the desert with few provisions. Nor did they have a feeling they could do anything: as the medieval commentator Jacob Tam (1100–1171) writes, the people were overwhelmed by the experience of direct divine revelation, as well as the thunder and flames that the narrative tells accompanied it.33 The people were religiously naïve at Sinai: they were “without covenantal experience, standing in the middle of a wilderness with nowhere else to go, and under supernatural pressure to immediately accept a covenant and its law …”34 An age-old rabbinic interpretation of the biblical account of the Jewish people standing at Mount Sinai at the time of the receipt of the divine command (Exodus 19:17) tells that the people were literally underneath it. The mountain was held over their heads, like a barrel, with the threat of loss of life if they did not accept the Torah. In the Talmud, the argument was brought forth that just as a coerced debt is canceled, so too the giving of the Law at Mount Sinai is null and void.35 2) Choice Yet many aspects of the narrative of receipt of the Covenant involve freedom. The Covenant is said to have been accepted in freedom at the time of the Purim events. Other indications of consent are apparent earlier than the period of Purim, and through to today. The acceptance of God’s command eradicates a notion of heteronomous submission or control. In the Talmudic discussion of the barrel metaphor of coercion, the resolution offered is that the Covenant was willingly accepted by the Jewish people in Persia (Iran), as portrayed in the Book of Esther. The scroll states that at the time of

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Purim the people practiced and received the laws (Book of Esther 9:27). The Talmud proffers the view that this statement shows the affirmation of the Covenant by the Jewish people’s free choice.36 Going back earlier in the historical processes described in the Bible, traditional sources proclaim that the soul of every Jew was present at the giving of the Covenant at Sinai. All of the Jewish people, including future generations, are said to have stood at Sinai. The narrative records the Covenant having been relayed to the whole people at Mount Sinai (Exodus 19:8, 14). Also Moses’ later retelling of the giving of the Covenant indicates that he had spoken to all of the people (Deut. 29:9–14): 9 You are standing this day all of you before the Lord, your God: your heads, your tribes, your elders, and your officers, every man of Israel, 10 Your young children, your wives, and the convert who is within your camp, from the woodcutters unto your water-drawers, 11 That you may enter the covenant of the Lord, your God, and God’s oath, which the Lord, your God, is making with you this day, … 13 But not only with you am I making this covenant and this oath 14 But with those standing here with us today before the Lord, our God, and also with those who are not here with us this day. Moses’ statement that the Covenant is not only with those present but also with those “not here with us today” (Deut. 29:13–14) is interpreted by a view recorded in the Talmud to mean that the souls of all future generations were present at Sinai, and freely gave their consent.37 Because all were present, on Talmudic reasoning all Jews are foresworn from Sinai.38 Maimonides, too, writes that the commandments are binding because all Jews agreed to live by them.39 Moreover, the notion of equality in the acceptance of the Covenant comes forth, as the entire people are depicted as having stood together at Sinai regardless of social standing – leaders, sages and water carriers alike (Deut. 29:10). Another indication of consent is the use of conditional language in the description of the Covenant’s offer. The Bible refers to God’s offer as dependent upon the people’s conditional – and hence free – acceptance of it: “If ye hearken unto My voice, and keep My covenant, then ye shall be Mine own treasure” (Exodus 19:5). After the Sinai event, the Covenant’s acceptance was recounted on the plains of Moab.40 There again conditional statements were made. Moses forecasts the blessings that will come if the people follow the commandments, and the curses that will befall them if they do not. (Deut. 11:22, 27–28; 28:1–2). Furthermore, on the plains of Moab the people are recorded as having answered with a response of “amen” to each of 12 commands not to commit prohibited deeds (Deut. 27:15–26). This response is thought to be more consensual than the people’s reply at Mount Sinai: “we will do and we will hear” (naaseh venishma). After the five books of the Bible, at the time of the prophets, the Bible twice more depicts the Covenant being affirmed. In both situations, the people accept

74 Freedom and Obligation the Covenant willingly (Joshua 24:16–24; 2 Kings 23:3). In the city of Shechem (Nablus), Joshua asks whom the people choose to serve, and the people respond: “Far be it from us that we should forsake God, to serve other gods” (Joshua 24:16). After Joshua’s detailing the favors God had shown to them and the warnings as to what will befall them if they depart from God, the people are reported to have said: “We will serve God, and unto God’s voice will we hearken” (Joshua 24:24). Hence Shechem is dubbed “the city of the Covenant.”41 Even the people’s action in the very crossing of the Jordan river to the plains of Jericho for the circumcision ceremony (Joshua 5:4–7) is said to show their consent.42 In 2 Kings, all the people stood as King Josiah rose to make the Covenant with God. The Covenant was renewed when the people returned from their exile to Babylonia. The Torah was canonized by Ezra, and the people willingly adopted it.43 The people thus obligated themselves. The acceptance at the time of Ezra is contrasted with the Sinai event. While at Sinai the people stood far off as Moses ascended the mountain, upon their return from Babylonia “the people gathered close, willing and attentive, they were prepared, finally, for revelation.”44 Also in modern times the Covenant is said to be adopted willingly. Irving Greenberg calls voluntary the Jewish people’s taking on the Covenant in the postHolocaust period.45 According to acclaimed author Chaim Potok, all Jews are Jews by choice.46 The Covenant is also understood as continuing to be formed. Hartman puts forth that tradition calls upon the community to renew the Covenant in each generation.47 In addition to the communal acceptance of the law by the Jewish people, also the individual is perceived as choosing to accept the law. One who abides by Jewish law freely chooses to act upon a law derived from God.48 The command that Jews wear fringes known as tsitsit symbolizes the taking on of commandments and duties by choice: Jews are only obligated to have tsitsit if they wear a fourcornered garment.49 When Jews do wear tsitsit, it is because they have chosen to do so. They obligate themselves.50 In addition to the consent to the Covenant set forth in the biblical narrative, and the willing acceptance of the laws, it is said that consent may not be necessary, insofar as the Covenant upholds moral principles. In the words of Hermann Cohen, we are not volunteers when it comes to morality.51 Sinai can be called a construct, and, as with John Rawls’ original position, everyone with rationality would accept it.52 3) Dialectic The central Jewish narrative and mythos of the Covenant at Sinai thus entail both obedience and autonomous consent. As stated earlier, I do not offer a blind eye to the tradition favoring the former (as for instance Leibowitz’s view supports), and yet it is important to recall the strength of the latter, as well. In addition to being a paradigm for God’s command, the Covenant shows choice. A dialectic is apparent between the two, as Soloveitchik teaches.

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Erich Fromm takes a humanistic view of Judaism, in opposition to Leibowitz’s position that worship of God demands total submission.53 The two themes contrast with each other in classic Judaic sources: human dignity, and human terror and submission when faced with the all-demanding might of God. Hartman points to Fromm’s approach as centered upon humanity’s strength, trying to help people realize their powers in life. Leibowitz takes the authoritarian view that the essential content of the Jewish faith is the recognition of the demand to serve God and the acceptance of that obligation. Soloveitchik discusses the tension between these two poles, which cognize two natures of humanity. In The Lonely Man of Faith, Soloveitchik shows how the Genesis creation narrative portrays two representatives of humanity. The first chapter in Genesis presents humankind as Adam 1, a “majestic man of dominion.” The second chapter portrays humankind as Adam 2, submissive and humble: the “lonely man of faith, obedience and defeat.”54 Adam 1 is commanded to subdue the earth and have dominion over every creature, and Adam 2 is commanded to watch over it. This dialectical role has been assigned to humankind by God. Adam 1 is the scientist and innovator, engaging in autonomous creative work, while Adam 2 is obedient to the divine voice. For Soloveitchik, the tension between autonomy and heteronomous faith is essential to man’s nature. Herein lies Soloveitchik’s response to the Kantian bind. According to Soloveitchik, we must live with the dialectic. Humankind is commanded by the Torah to be both Adam 1 and 2, at the same time: to conquer and rule the earth, and to be obedient to the rule of the world and universe. A Jewish life lives with this tension. Torah and halacha are in both modes, and lend paths of life in both ways.55 Biblical narratives show both sides of the dialectic. In the tale of the binding of Isaac (akedah), Abraham’s willingness shows obedience, yet his challenge to God is presented for example by Elie Wiesel’s interpretation of the event, as described above. The dialectic is also apparent where Abraham challenges God in bargaining to save the cities of Sodom (Genesis 18:22–5), while the same story recalls that he is but dust and ashes (Genesis 18:27). Humans are both kings and dust.56 4) Partnership The dialectic can be conceived as resolved in relationship. Upon the Covenant, the Jewish people is not a mere subject of the divine ruler, coerced by or obedient to an external authority, but is in partnership with God.57 The covenantal partnership calls for freedom and obligation. Hartman shows the tradition engaging with both.58 The Bible depicts God as an empowering rather than a controlling presence. Freedom comes through the obligation of creating and perfecting the world, in the partnership with God that the Covenant calls forth. Judaism takes humans to be created in God’s image as creators – as God’s partners in the work of creation.59 Humanity keeps the world from dissolving. Avivah Gottlieb Zornberg gives this interpretation: “The people are responsible

76 Freedom and Obligation for the ‘I’ that ‘fixes,’ that congeals dissolving reality. The world is saved by a human affirmation, a human ‘standing at Sinai,’ which halts the disintegration.”60 Humankind is to complete God’s work of creation.61 Humanity is to perfect the world through actualization: realizing God’s law in the concrete world.62 Jewish tradition views the repairing of the world a matter of bringing God’s spirit down to earth, rather than mysticism’s view of repairing the world by raising it up to the heavens.63 We complete creation, and fix the world – tikkun olam. Creation in partnership is accomplished upon our task of feeding the hungry and caring for the poor, as seen from Isaiah. 64 The partnership is symbolized for example in the blessings at the traditional Sabbath evening meal over wine and bread: it is human effort that creates the wine and loaves of bread, yet from the grapes and wheat that God allows to grow. In the Covenant, both humans and God have decided to define their destiny in terms of the other. Not only are the people obligated by the Covenant; God too is obligated to meet its terms.65 The unity of wills that the partnership cognizes has been seen in Chapter 1. The Covenant in partnership is taken as presenting a resolution to the Kantian bind of autonomy v heteronomy.66 The joining of freedom and obligation is thus taken to foster a dialectical tension, and also a covenantal partnership that weaves the two elements together. The partnership is furthered insofar as the human’s freedom is enhanced through taking on obligation. C. Obligation Gives Rise to Bounded Freedom Obligation has been shown to bear elements of freedom and may only arise from freedom, but further: obligation is said to bring freedom. The freedom that arises is one that is bounded. Obligation is concomitant with freedom, and freedom with obligation. Freedom and obligation are two aspects of a unitary continuum. Obligation brings freedom. It makes us free, according to Jewish tradition. The well-known saying of Judah Halevi in the medieval period puts forward that humanity is free with mitzvoth, and not a slave to time.67 Also according to Leibowitz, “acting in compliance with the divine will rather than in accordance with the human will” is freedom from human nature, which fills us with “desires, inclinations and volitions.”68 The rabbis interpret the narrative of the Tablets of Stone being brought by Moses from Mount Sinai to show that from obligation springs freedom. The Talmud presents an instruction to read the biblical description of the incision of God’s writing on the Tablets (Exodus 32:16) not as “incised” or “engraved” (harut) but rather as “liberty” (herut), a term with the same linguistic root.69 From this the lesson is derived that the divine commands lend freedom. Herut offers positive freedom bounded by the law and obligation to God.70 The valuing of the individual and the concept of positive freedom in Jewish tradition and Kantian theory are similar. The metaphor of the string of the violin and the musician learning notes that are free with bounds was relayed earlier: the

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restrictions enable music to come forth. In Judaism as for Kant freedom is not existential choice to do whatever one wants, but positive freedom to be capable of choosing the moral law – and to be held accountable to it. God is bound by Covenant, and so is our freedom.71 The positive freedom emphasized in Jewish tradition is freedom to, rather than negative liberty’s freedom from. While Jewish law involves both positive, affirmative commandments as well as negative ones, it is the positive mitzvoth that take precedence: positive commandments override negative commandments when the two conflict.72 Upon their exodus from slavery in Egypt the Israelites received their negative liberty, and the positive freedom (herut) to serve God.73 Positive freedom includes the freedom to study Torah. The continuation of the Talmudic passage that reads freedom (herut) into the description of the engraving (harut) of the Tablets bearing the commandments, states that the only individual who is free is one who engages in the study of Torah.74 Freedom to is also the freedom to aim towards perfection. The freedom to answer to God’s will is deemed to entail the pursuit of perfection. Maimonides and other thinkers deem the mitzvoth to aim towards the perfection of the self, humanity and the world, upon the realization of moral norms. At Sinai, positive freedom was granted to the Jewish people, with the Covenant as a constitution of liberty,75 whereupon a free society must be moral.76 A saying of the Sages proclaims: “It is not your responsibility to finish the work [of perfecting the world], but you are not free to desist from it either.”77 Humans are to repair the world: tikkun olam. Responsibility comes to the fore. The Covenant is understood as an invitation to responsibility. Hartman discusses the essential connection between covenantal consciousness and involvement with and responsibility to others.78 The word meaning “responsibility” in Hebrew is related to the letters that spell out the word “the other”: the term “responsibility” (ahrayut) has as its linguistic root “the other” (aher). In Jewish thought obligation is indeed to oneself, to the Other (God), and to others. The primacy of obligation in Jewish tradition has been seen, with the Covenant setting forth divine law. Yet it has also been shown that covenantal relations affirm choice, and the freedom of the individual and of the Jewish people. Obligation is even thought to bring freedom. It is to Judaism’s strong tradition of human freedom – and the freedom to make responsible choices respecting the moral law – to which discussion turns.

II Judaism and Freedom Humans are obligated and also free: exploration now moves from the submissive Adam 2 to the majestic man of dominion, Adam 1. Judaism is replete with freedom. Human freedom follows from God’s freedom. Freedom also entails obligation. The individual thus owes and is owed duties of respect for freedom. While the discussion above focused on obligation, from which arises freedom, here freedom is seen bound to obligation.

78 Freedom and Obligation A. Portrayals of Freedom God is free, and because the human was created in God’s image, humanity is also free. God’s freedom is apparent from God’s transcendence over nature, as is fundamental in Genesis 1. God is not bound by nature’s laws; while a law of nature such as gravity could not stop, on the seventh day of creation God was able to limit divine activities and take the Sabbath rest. God’s being bound to moral law is not deemed to be a limit on God’s freedom, as is apparent from the response in Jewish thought to the Euthyphro dilemma seen earlier: as a perfect agent, God cannot do otherwise than will the moral law. By creating human beings in the divine’s image, God gave us a similar freedom.79 God is free from inclinations, which is a freedom towards which humanity aims, according to both Leibowitz and Kant.80 Clear images of freedom appear throughout the Bible. In the Garden of Eden the first human, Adam, was given the freedom to name the animals (Genesis 2:19– 20). The number seven, oft-repeated in the Torah, is said to represent freedom: the seventh day is the Sabbath, when Jews do not work; on the seventh year the land is not to be tilled and slaves are freed.81 The slave’s ear is to be pierced if the slave chooses not to go free in the seventh year, as he failed to hear God’s words setting people free.82 The Jubilee year brings freedom from debt, in the 77 = 49th year.83 The biblical image of the exodus from slavery to freedom has had a wide impact on Jewish history and the history of humankind.84 Freedom is of the Jewish people, and also of the individual. Judaism affirms both the universal and the particular. The individual human being, created in the image of God, is sacred.85 As Soloveitchik writes, Halakhic man … protects his own selfhood, his particularity, his soul’s private domain. The “I,” the self, is also part of that concrete reality which Halakha purified and hallowed. In general, whenever the moral law reigns supreme, the sense of individuality becomes deeper and stronger.86 Every human individual is unique. In the Talmud a view is offered that ordinary mortal craftsmen form things in a mold, with every exemplar alike, but in God’s formation of humanity no individuals from the human mold are identical.87 The Bible depicts God speaking to the collective Jewish people, but in the singular rather than the plural, namely addressing each individual; for example the Ten Commandments read “Thou shalt …” and “Thou shalt not … .”88 Judaism bears similarity here to Kantian theory, and differs from ancient Greek philosophy. Soloveitchik compares the Jewish tradition’s approach to the Kantian maxim “that the moral law gives man the strength to stand before the overpowering cosmic drama without losing his own selfhood.”89 Similar to Kant, Jewish thought takes the individual to be “precious intrinsically, as an end, never a mere means.”90 In contrast, the ancient Greek philosophers had difficulty with the idea of human uniqueness. Plato placed value in universals, and Aristotle argued that there is no science of the individual.91 The Jewish tradition differs:

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Individuality, for Aristotle, in large part meant idiosyncrasy, accident, and contingency. Matter, differentiating, even isolating particulars, gave such free rein to the welter of conflicting causes that the network of interaction readily escaped analysis, letting the unwary imagine that chance rules in nature. But for the Rabbis individuality makes every person uniquely precious.92 Self-sufficiency and economic independence are also put forward strongly as ideals in Jewish sources. The Bible wishes for every man to be under his own vine or fig tree.93 At the time of the Talmud, Hillel mitigated the biblical remission of debts in the seventh year by transposing private debts into public obligations, in order to alleviate poverty.94 Upon our freedom humans are responsible to whatever is morally necessary.95 In the aspects of human freedom explored here, free will and autonomy, the responsibility of freedom shines through. Free will and autonomy are limited in order to respect the freedom of others. The freedom to make responsible choices was discussed above from the perspective of obligation, and here is analyzed from the perspective of free will. Autonomy is apparent in the call for the subjective interpretation of divine law. Just as free will is limited by responsibility, interpretation too bears the limits of respecting others, and heaven. The final section of this chapter looks to the ethics that freedom affords. B. Free Will Judaism considers the human to bear free will. Freedom brings with it moral responsibility. While choice is free, people are to choose correctly. Because we are held responsible for our actions, we are obligated to act responsibly. Jewish sources propose that humans are faced with choice continuously, and bear the consequences of choices made. Moreover, God’s omnipotence is said not to foreclose human freedom of the will. Responsibility reigns over choice. That humans have the power of choice and bear the consequences of those choices is apparent from the Bible as early as in the tale of Adam and Eve in the Garden of Eden. Humans were held accountable for their actions, and the consequences were said to be life and death. Adam 1 and 2 are to reign but also watch over the world. Maintaining the creation is human responsibility. Rabbinic interpretation of God’s instruction of humanity is: “Pay heed that you do not corrupt and destroy my universe, for if you corrupt it there is no one to repair it after you.”96 In the story of Adam and Eve’s children, Cain and Abel, the same lesson is taught. God tells Cain that choice is constantly present for him, and that he will bear the consequences of his choice (Genesis 4:6–7). The Jewish tradition reads this passage to say that humans have the power to make that choice, as John Steinbeck highlights in his novel East of Eden. 97 The choice is made clear in the biblical passage when Moses relays God setting forth that the people are to choose life: “I have set before you life and death, the blessing and the curse. Now choose life, so that you and your children may live”

80 Freedom and Obligation (Deut. 30:19). This statement can be understood as a commandment and hence obligation, or as freedom – or as both, again evidencing the intertwining of the two.98 Later sources confirm free will and its consequences. The prophet Ezekiel states: “The righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him” Ezekiel (18:20). Free will is necessary given the possibility of repentance that is central in Judaism. A prayer recited on the New Year Days of Awe states that it is written and sealed who shall live and who shall die, but the severity of the decree may be averted with repentance, prayer and charity. Repentance would not be possible were there no conception of free will.99 With an all-powerful God, do people indeed have free will, or is everything preordained? Jewish thinkers have suggested various responses to this query. The debate between free will and determinism was discussed widely in the Middle Ages.100 A spiritual approach suggests that God’s self-contraction made space for the creation of the world, for humanity, and for free will. God’s withdrawal of power from the world enables humankind complete autonomy, so that people will take responsibility.101 A well-known statement by Rabbi Akiva recorded in the Talmud provides: “All is foreseen yet free choice (reshut) is given.”102 The statement is cited by both determinists and libertarians. It is often taken to mean that humanity has free will despite divine foreknowledge. The passage is alternatively translated as: “Everything is observed, and power is granted.” It thereby can be taken to mean that humanity has free will while God watches humans’ actions.103 Even while the Bible reports God’s foretelling of what will come, Maimonides claims that it affirms the free will of each individual. God describes the way of the world, indicating that people will be wicked; yet for instance each Egyptian had the choice of whether to enslave a Jew or not, and each Jew had the choice of whether to worship idols.104 Maimonides recognizes that actions are caused: what proceeds necessarily from causes does so because God commanded it, insofar as God created the natural order. Causality does not necessitate determinism; choice is free.105 Even with God’s foreknowledge or observing, human responsibility is supreme. Queries were raised regarding a biblical commandment requiring the placing of a parapet on the roof of one’s house, to prevent someone falling (Deut. 22:8). Rashi asks: if everything is determined, i.e. if God is going to have someone fall off the roof anyway, what does it matter? Why build the parapet as a guard rail? Rashi answers: so that no one should fall off of your roof, causing your accountability for someone’s injury or death. Humans are thought to have the choice of being meritorious or guilty – namely, the choice of whether they build the parapet or not.106 Each is responsible to take care, to guard others. Choice makes responsibility necessary. Reshut is power, the permission to act freely – and according to Rabbi Akiva, indicates where people are morally responsible.107 The linguistic root of reshut is similar to that of reshet, indicating a network: I would suggest that our freedom and permission indeed ties us to a network of relations, in which people are to act responsibly. Responsibility is indeed the focal point of the free will debate.108

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C. Autonomy Freedom is prominent in Jewish sources and tradition also in the intellectual rigor that is lauded, and the interpretation allowed. Intellectual liberty has loomed large throughout Jewish history and thought.109 Biblical narrative is suffused with accounts of intellectual debate in arguments with God, such as by Abraham against the destruction of Sodom (Genesis 18), by Moses against God’s departure from the Israelite camp (Exodus 32), and by the prophets.110 While freedom in speech is returned to in Chapter 4, it is interpretation that is in focus here. In Jewish tradition, humans are deemed authorized to interpret the law. Judaism is not a faith of dogma.111 Judaism is “founded on the Book, and for the guardians of its tradition it was more or less self-evident that no text, a fortiori no ancient sacred text, is accessible to understanding without interpretation.”112 Having been created in God’s image, humans have the capacity to understand and discern, as Rashi puts forward.113 Maimonides strongly maintains that the advancement of the intellect is the aim of humankind’s search for perfection.114 Here in focus is the autonomy in interpretation affirmed in rabbinic rulings and throughout Jewish history. 1) Interpretation Throughout Jewish History From the time of the giving of the Torah at Mount Sinai, its meaning has been developed in interpretation. As presented above, the statement of the Jewish people upon their receipt of God’s commands was “naaseh venishma.” The latter term, venishma, has the same grammatical root as mashmaut, or “meaning.” The phrase can be deemed to indicate that the people will follow and also will understand, or give meaning to the commandments. Such meaning will be created for them through interpretation.115 Even the metaphor of the giving of the Torah at Mount Sinai as akin to a barrel being held over the heads of the people has itself been taken as an interpretive act. Tamar Ross posits that no truth has “the power simply to bang us over the head and compel us to understand it as such. Even the original revelation could be acknowledged as God’s word only when filtered through the prism of past cultural symbols and traditions.”116 Interpretation was furthered upon the editing and canonization of the Bible text by Ezra, at the time of the rebuilding of Jerusalem in the 5th–4th centuries 117 BCE. After canonization of God’s word in the Torah, the tradition moved from revelation to exegesis. David Weiss Halivni writes: “Once the nation had embraced a book, no need remained for the admonitions and the visions of the prophets. Interpretation took the place of revelation.”118 2) Rabbinic Rulings While the written Torah is the starting point for the Jewish legal system, the law continued and continues to progress. Judaism supports a rich tradition of

82 Freedom and Obligation interpretation through the Oral Law, which is all of Jewish law that is not explicitly set forth in the Scriptures.119 In the Oral Law, made up of halachic rulings developed by rabbinical authorities, opinions build upon each other.120 In the continuous and creative nature of rabbinic rulings, autonomy is exhibited. Moreover, rabbinic decision-making is subjective, and is taken by majority vote. The process of rabbinic decision-making is one of constant confrontation between contesting views, each one in its own time and place.121 Irving Greenberg writes of the Covenant’s ability to change with time, and the glory of the Covenant, which human freedom may change.122 Interpretation and rulings on halacha are for the teachers of each generation to make. The Bible instructs (Deut. 17:9) that upon matters of controversy, the people should approach the judges of their day. A Talmudic tale portrays Moses ascending to heaven and seeing (1st–2nd century) Rabbi Akiva stating with respect to an interpretative ruling: “This is a law given to Moses on Mount Sinai.”123 Rabbinical authorities of each generation have the freedom to develop rulings within the system of halacha. 124 It is both a freedom and a duty. The continuous interpretation of the law depends upon creativity. The “continuity and vitality of Halakha require and demand that halakhic authorities of every generation use the prerogative conferred on them in a way that furthers halakhic creativity and development.”125 Creativity and innovation in Jewish rulings and reasoning is a revered practice.126 The study of Torah means “gleaning new and creative insights.”127 In the words of Soloveitchik, the power of creative interpretation is “the very foundation of the received tradition.”128 The reasoning required in the interpretation of divine law is subjective. As Haim Cohn writes, the “divinity” of Jewish law is in actual practice achieved, and freely admitted to be conditioned, by human agencies operating for human ends with human methods and from human motives … [T]he “divinity” is inherent, so to speak, in the whole process of creation and change.129 Subjectivity is apparent in the application of equitable principles known as paths of peace (darkhei no’am), fairness (yosher), justice (tzedek), mercy (hesed), goodness (tov), and peace and good will (shalom).130 Legal norms are derived from precedent, the natural reason of the scholars, and from the insights of common sense, as Eliezer Berkovits affirms.131 Interpretation is subjective and hence free. The determinative rulings are by majority vote, as is depicted in the well-known Talmudic story of the Akhnai oven.132 When rabbis disagreed about a ruling under religious law as to whether a certain type of oven could become impure, the majority won. This was so even while the minority perspective espoused by Rabbi Eliezer, the most brilliant sage of that generation, was accompanied by a series of miracles to underscore its correctness: a carob tree uprooted itself, a river ran backward and walls of the study hall began to fall. A heavenly voice is said to have declared that Rabbi Eliezer’s opinion was correct. Yet upholding the majority opinion, Rabbi Joshua quoted a biblical passage stating: “It is not in heaven!”133

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When the prophet Elijah was asked about God’s reaction to this event, Elijah responded: “He laughed [with joy], saying, ‘My children have defeated Me, My children have defeated Me.’” This event has become known as lo bashamayim hee, indicating that the source of interpretation of the law is on earth, rather than in heaven.134 The story of the Akhnai oven shows that in Jewish tradition “God himself, in the act of revelation, handed the deciding authority to man.”135 The authority of the priests and judges over matters of controversy is prescribed in the Bible: “According to the law which they shall teach you, and according to the judgment which they shall tell you, you shall do” (Deut. 17:11). Interpretation of the law is in human hands. 3) The people Not only do rabbinic rulings show autonomy, but freedom is widely considered to arise from the Jewish tradition. In addition to the autonomy of interpretation held by the rabbis, the general populace partakes of the freedom proffered by the tradition with respect to the Torah and the law. Interpretation of Judaic texts involves the freedom of every individual Jew. The tradition holds that all Jews – including souls of future generations – stood at Mount Sinai when the Covenant was given, as seen above regarding the notion of universal consent.136 Each is said to have received it according to their own might.137 Many different interpretations and hence meanings of the Covenant come to the fore (given the people’s “venishma”). Traditional sources point to 70 faces of the Torah.138 A midrash suggests that there were and are millions of views, given all of those who stood at Mount Sinai.139 The Talmud offers a view that one biblical verse conveys many teachings.140 Upon a hammer hitting a rock the splintering is into many facets; so too a biblical verse may convey many meanings.141 There are said to be 49 ways of interpretation of a Torah rule in affirmation of an opinion and 49 ways opposing it142 – namely 49 paths or channels of understanding the Torah.143 On the view in the Jewish tradition that all of the people stood at Sinai, with each having their interpretation of the Covenant, the significant role of the recipient, or reader, comes forward. Also in biblical and Talmudic study, the reader is critical in determining the meaning of a text; the Talmud invites “careful scrutiny and independent thinking on the reader’s part.”144 Study is traditionally done not on one’s own, but jointly with learning partners (in hevruta). Also, as discussed in Chapter 5, the link between the reader and meaning is to be found in Kantian and postmodern theory. The reader is said to define and develop the meaning of a text. Kant writes that readers of a writer’s work may well understand the writer “even better than he understood himself.”145 Interpretive commentary continues through to today. Drash and midrash are Jewish commentaries on the Torah and the Talmud, and are considered part of the ongoing Oral tradition.146 Reading and interpretation of biblical texts is open to all, online, in today’s project known as 929 (which is the number of chapters in the Bible). With midrash, illustrative stories through personal experience and

84 Freedom and Obligation human imagination are offered. Narrative exegesis thus supplements reasoned argument to ground the subjective interpretations of divine law. Spanning geography and generations, Jews responded to biblical text with questions, challenges, and ideals of their time and place.147 All of the people of a community are involved in interpretation insofar as rabbinic legal rulings are shaped by practice. Torah law evolves. Customs may acquire the binding force of law, and may even supersede the law.148 Rabbinic rulings incorporate insights from social practices, with legal procedures and interpretive devices to apply them.149 Halacha can be said to develop from bottom up.150 Custom is an interpretive tool of halacha regarding women’s practices, as discussed in Chapter 6. 151 Hence human autonomy shines forth in the creative freedom and subjective nature of interpretation of the divine law. Autonomy in interpretation has been put forward by some Jewish thinkers as a resolution of the Kantian autonomy–heteronomy bind: even while Soloveitchik underscores the difference with the Kantian theory of ethical autonomy,152 the acceptance of the word of God is not heteronomous, as it is by the individual.153 4) Ethics in Interpretation Interpretation is to be free, and to be performed within ethical guidelines. Ethics include freedom, as well as the duty to respect the freedom of the other. Indeed in the autonomy of interpretation provided in the Jewish tradition, freedom comes alongside the duty of respect for the other. Responsibility is entailed by free will; also the autonomy of interpretation requires ethical behavior. Diverging views are to be respected: “these and those” are the words of God. Minority views are to be recorded, even if erroneous. Ethical norms of interpretation at times require going beyond the law. Upon the continual disagreement in Talmudic times between the two schools of Hillel and Shammai, where the opinion most often settled upon was that of Hillel, also the position of Shammai was recorded. According to the principle of “these and those,” the rulings of both were proclaimed to be “words of the living God.”154 Disputes “in the Name of Heaven” endure.155 Hillel is said to have won precedence for acknowledging the opposing opinions of Shammai before his own.156 The culture that accepts this principle “views dispute and normative diversity as a fixed and critical feature of Halakhah.”157 The respect accorded to minority opinions reflects the ethics of interpretation. The Talmud offers a view that a rejected ruling may represent a valid approach.158 Because the minority opinion could become the majority, its reasoning is recorded.159 Nahmanides underscores that erroneous approaches are to be respected.160 Even voices considered as beyond an acceptable pale are accorded respect. For instance the opinions of Elisha ben Abuya, who is referred to in the Talmud as “the other” (ha’aher) when his path led him to depart from the rabbinic community, continued to be recorded; his place in Talmudic debates is not erased.161 Also a rabbi declared by the

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highest religious court as a “rebellious elder” is to be allowed to continue to teach his opinion in disagreement with the official ruling.162 Efforts at uniformity in the law have been opposed. The exclusion of minority opinions in Maimonides’ Code of Jewish Law (Mishneh Torah) in the 12th century provoked a critical reaction. Also the codification of the law in Joseph Caro’s Shulchan Aruch in the 16th century was not accepted by all. Solomon Luria, known as the Maharshal (c. 1510–1573) opposed the idea that it presented: that the law was not to be debated.163 In the Talmudic tale described earlier of the Akhnai oven, a Talmudic view critiques the demeaning of the minority voice and its proponent. The story continues by depicting the rabbis excommunicating Rabbi Eliezer, to whom great sadness was caused. Following the excommunication, crops failed, and a huge wave threatened the patriarch Rabbi Gamliel, who was travelling by sea. This conclusion to the story was taken as a rebuke of the Sages’ treatment of Rabbi Eliezer and his minority voice: it “considers the damage caused by words and the humiliation of persons.”164 While the rabbis were in the right before God – namely the human interpretation prevailed – they were in the wrong against Eliezer. The Talmudic context for the tale is a discussion about the wrong of harm through words.165 The ethical lessons of the story regard the autonomy in human interpretation of divine law, but also the necessity of respect. Norms of interpretation reflect ethical principles. Methods of interpretation of divine law include paths of peace (darkhei noam).166 The Bible’s instruction to do the Right and the Good (Deut. 6:18; 12:28) may require an interpretation beyond the law,167 known in legal terms as equity.168 This can be a matter of reversing “a literal interpretation to produce rulings which would run counter to the larger thrust of the Law.”169 Talmudic efforts to justify interpretations beyond the letter of the law were often based on moral considerations.170 An example is the biblical injunction “An eye for an eye” (Exodus 21:24), interpreted to mean monetary compensation for the value of an eye.171 The Talmud records Rabbi Yohanan saying that Jerusalem was destroyed by the Romans because the judges ruled in accordance with the strict letter of the law, as opposed to ruling beyond it.172

III Conclusion Jewish tradition stands strong on both freedom and obligation. A symbol of the intertwining of the two is the bar- and bat-mitzvah ceremony for children reaching the age of adulthood. Celebrated as a coming of age for the teenage child, with a note of independence and freedom, it is the age of taking on obligation. Literally, bar mitzvah means a bearer of commandments. While central paradigms are presumed to surround obedience, obligation relies upon freedom, implicates freedom, and also gives rise to freedom. Also starting from the perspective of freedom, the link is compelling: freedom is neither existential nor absolute, but implies responsibility. Human free will and autonomy are to be exercised responsibly. Freedom and obligation are two elements of a unified system. Ethical guidelines frame both freedom and obligation. The ethical duty

86 Freedom and Obligation requiring relations of respect are explored in the following chapter. The Jewish ethics of communication in view there are seen in practice in Part II.

Notes 1 Robert M Cover, “Obligation: A Jewish Jurisprudence of the Social Order” in Law, Politics, and Morality in Judaism, ed Michael Walzer (Princeton: Princeton UP, 2006). Moshe Halbertal emphasizes the centrality of obligations through mitzvoth, and draws an analogy to the centrality of obligations in Kantian thought. Moshe Halbertal, Maimonedes: Life and Thought (Princeton: Princeton UP, 2009) 133–4. 2 Immanuel Kant, Religion within the Limits of Reason Alone, trans & eds Theodore M Greene and Hoyt H Hudson (1793) (New York: Harper Torchbooks, 1960) 6:187 (on Abraham’s binding of Isaac); ibid 6:126 (Judaism views the Ten Commandments as only regarding external observance). See also ibid 6:23 footnote (regarding awe at Sinai). 3 Jonathan Sacks, Covenant & Conversation: The Necessity of Asking Questions (Bo, 5772) 28 January 2012. Instead of a word meaning “to obey,” the Torah uses the verb shema, meaning: [1] to listen, [2] to hear, [3] to understand, [4] to internalize, and [5] to respond. Ibid. Discussed below is a term sharing that linguistic root, used in the Jewish people’s response when the Torah was received (naaseh “venishma”). 4 Immanuel Kant, The Conflict of the Faculties, trans Mary J Gregor and Robert Anchor (1798, 1996) in Kant, Religion and Rational Theology, in reliance upon Mary J Gregor’s translation (New York: Abaris Books, 1979) 7:63*, at 283. 5 Commentary of Rashi. 6 Elie Wiesel, “The Sacrifice of Isaac: A Survivor’s Story” in Elie Wiesel, Messengers of God: Biblical Portraits and Legends, trans Marion Wiesel (New York: Simon & Schuster, 1976) 91. Abraham defies God as if to say: You promised me children and future generations; let us see how You will do it. You asked me to sacrifice Isaac and I actually will. Ibid 92. 7 Isaac too, who was 37 years old according to rabbinic calculations, can be said to have participated in the ritual by choice. 8 From the commentary of the Hasidic master Yehuda Arye Leib Alter (1847–1945), known as Sefat Emet, the question arises: Did Abraham fail by acting not from love of God to fulfill God’s will, but acting in fear of God to fulfill God’s command? Jerome I Gellman, The Fear, the Trembling and the Fire: Kierkegaard and the Chasidic Masters on the Binding of Isaac (Lanham: Univ Press of America, 1994) 87–95. 9 I thank Rabbi Elisha Wolfin for this insight. 10 Rabbinic commentary throughout the generations has been concerned with the impact of the akedah event on Abraham’s relations with Isaac and with Abraham’s wife Sarah. Abraham climbs the mountain with Isaac, but returns to its base alone. Sarah dies after the akedah events. 11 Joseph B Soloveitchik, Halakhic Man (Philadelphia: Jewish Publication Society, 1983) 143 n5; Joseph B Soloveitchik, “Majesty and Humility,” 17(2) Tradition 25 (1978). The dialectic is returned to below, where Soloveitchik’s tracing it from the creation narrative at the start of Genesis, recording the creation of Adam 1 and Adam 2, is in view. 12 Emil Fackenheim, “Abraham and the Kantians” in Emil Fackenheim, Encounters between Judaism and Modern Philosophy (New York: Basic Books, 1973) 48. Fackenheim sees a divide here between Judaism and Kant (“For Kant, all morality, including religious morality, demands a two-term relationship between man and his human neighbor.”) Ibid. Yet Kant may be seen as presuming a similar relationship, as seen in Chapter 1, and as put forward in Sidney Axinn, “Kant on Judaism,” 59(1) Jewish Quarterly Review 9 (1968) 22.

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13 Tova Hartman and Charlie Buckholtz, Are You Not a Man of God? Devotion, Betrayal, and Social Criticism (Oxford: Oxford UP, 2014). 14 See Rabbi Elisha Wolfin’s commentary (in Hebrew) at: http://www.masorti.org.il/ kehilot/uploads/veahavta/editor_uploads/files/Vayera_2014.pdf 15 Passion was necessary as Abraham’s faith had been intellectually focused. Gellman 110. 16 Maimonides, Guide for the Perplexed 3:24. The command of the akedah is in a vision. Ibid and at 2:36 n3 discussing Numbers 12:6: God speaks to prophets in a dream; ibid 2.41, 2.42. According to Maimonides, in prophecy the rational faculties become active (ibid 2.41), as seen in Chapter 1. 17 The akedah teaches that devotion to God need not be clothed in pagan garments but based on the pure apprehension of God, in the words of Abraham Isaac Hacohen (known as “Rav Kook”), the Chief Rabbi of Palestine before the establishment of the State of Israel, in his Iggerot Ha-Reiya 379. 18 Traditionally, lishmah is about the study of Torah. Ethics of the Fathers 6:1 (R. Meir). Studying Torah out of love of God is lishmah. Maimonides, Code: Laws of Repentance 10:2, 10:5. The principle of lishmah contrasts with the principles in Jewish thought described earlier setting a telos of perfection and a common good. 19 “[S]olely respect for the law is incentive that can give an action moral worth.” Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) [“GMM”] in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996) 4:440. 20 The tale told in BT-Avodah Zara 3a is relayed in Alon Harel, Why Law Matters (Oxford: Oxford UP, 2014) 147–8. A transgression done with good intentions has been said better than a mitzvah done not lishmah. BT-Nazir 23b. 21 Cover, “Obligation” in Law, Politics, and Morality in Judaism, ed Walzer 5. 22 BT-Kiddushin 31a (R. Hanina). 23 Deut. 22:6, BT-Berakhot 33b (R. Jose ben Abin, R. Jose ben Zebida). Moshe Sokol compares BT-Berachot 33b regarding motivations for observing God’s law, with Kantian theory regarding intent and duty. Moshe Sokol, “The Autonomy of Reason, Revealed Morality and Jewish Law,” 22 Religious Studies 423 (1986) 431. 24 Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State, ed Eliezer Goldman, trans Eliezer Goldman, Yoram Navon, Zvi Jacobson, Gershon Levi, and Raphael Levy (Cambridge, MA: Harvard UP, 1995) 12, 265. Leibowitz relates service of God to lishmah: observing mitzvoth for the sole reason that in so doing we are worshiping God. Ibid xviii, 43, 66. 25 Nahmanides’ commentary on Deut. 22:6. Mitzvoth are for educational purposes, according to Maimonides and Nahmanides, as seen above. 26 BT-Pesachim 50b, BT-Nazir 23b (R. Yehuda). 27 For instance, the act of prayer is to be repeated three times daily, even if without intent (called kavanah), as discussed in Chapter 4; it is said that with the repetition of the act, the kavanah will follow. 28 Daniel J Elazar, Covenant & Polity in Biblical Israel: Biblical Foundations & Jewish Expressions – Covenant Tradition in Politics, vol 1 (New Brunswick: Transaction, 1995) 5–6; Ze’ev W Falk, “Can Judaism Incorporate Human Rights, Democracy, and Personal Autonomy?” in On Liberty: Jewish Philosophical Perspectives, ed Daniel H Frank (New York: St Martin’s, 1999) 114. 29 Cover, “Obligation” in Law, Politics, and Morality in Judaism, ed Walzer 7. 30 Nahmanides’ commentary on Exodus 21:2. Also the Covenant of the Pieces was said to be a Covenant by choice for Abraham and Jacob, according to Nahmanides. Avivah Gottlieb Zornberg, Genesis: The Beginning of Desire (Philadelphia: Schocken, 1995) 254. 31 Maimonides, Code: Laws of Repentance, Chapter 5.

88 Freedom and Obligation 32 See also Exodus 19:8 (“All that the Lord hath spoken we will do”), Exodus 24:3 (“All the words which the Lord hath spoken will we do”). Kenneth Seeskin notes that the people said “naaseh venishma” only after the giving of the Ten Commandments and the reading of the law. Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 51. Sacks interprets the acceptance of deeds before thought as indicating the communal recognition of a religion of practice and of deeds. Jonathan Sacks, Covenant & Conversation: Doing and Hearing (Mishpatim, 5776) 1 February 2016. The view of Judaism as a religion of deeds is examined in Chapter 4. Alternatively, as presented below, the linguistic root of the word “venishma,” from which the term “mashmaut,” namely “meaning,” is derived indicates that the people will do the laws and give them meaning. 33 David Novak, The Jewish Social Contract: An Essay in Political Theology (Princeton: Princeton UP, 2005) 73. 34 Ibid 81. 35 BT-Shabbat 88a (R. Avdimi son of [ben] Hama ben Hasa, R. Aha bar Yaakov). Maimonides also writes: “If man’s actions were done under compulsion, the commandments and prohibitions of the law would be nullified and they would all be absolutely in vain, since man would have no choice in what he does.” Moses Maimonides, Eight Chapters, trans Raymond L Weiss, in Ethical Writings of Maimonides, eds Raymond L Weiss and Charles Butterworth (New York: Dover, 1983) 84–5 (in The Eighth Chapter: On man’s inborn disposition). The metaphor of Mount Sinai being held over the heads of the people like a barrel has been termed by Tamar Ross an interpretive act, as seen below. 36 BT-Shabbat 88a (Rava); see also Midrash Tanhumah-Ki Tavo. Because at Purim-time the people accepted the Torah, it is binding. 37 BT-Shavuot 39a. 38 BT-Nedarim 8a. 39 Maimonides, “Introduction” in Code; Kenneth Seeskin, “Ethics, Authority, and Autonomy” in The Cambridge Companion to Modern Jewish Philosophy, eds Michael L Morgan, Peter Eli Gordon (Cambridge: Cambridge UP, 2007) 205. 40 In the Biblical book of Deuteronomy, Moses retells the history of the people’s journey from Egypt. In Deuteronomy chapter 4 (4:10) Moses recalls the giving of the law at Mount Sinai; in chapter 11 retells the Covenant; in chapter 27 instructs a writing of the law when the people cross into the land of Canaan; and in chapter 29 sets forth a warning to uphold the Covenant. No Covenant is new, Moses explains. (Deut. 4:2, 13:1). 41 Haggai Ben-Arzi, “The Covenant on the Plains of Moab - Ki Tavo 5775” (Parshat Hashavua Study Center, Bar Ilan Univ, September 5, 2015). 42 Abraham’s circumcision is also considered to show his adoption of the Covenant by choice. Ibid. 43 Nehemiah 10. See Seeskin, Autonomy in Jewish Philosophy 49. 44 David Weiss Halivni, Revelation Restored: Divine Writ and Critical Responses (Boulder: Westview, 1997) 83. See David L Leiber, “The Covenant and the Election of Israel” in Etz Hayim: Torah and Commentary, eds David L Leiber et al (New York: Rabbinical Assembly-Jewish Publication Society, 1985, 2001) 1416–20, 1419 (the Covenant was renewed at Shechem, before Joshua’s death; in Jerusalem, at the time of King Josiah’s reformation; and in Jerusalem again, during the time of Ezra). 45 Irving Greenberg, The Voluntary Covenant (New York: National Jewish Resource Center, 1982). Greenberg also writes that our acceptance is free because it is without clear signs from God through prophets. 46 Joshua O Haberman, The God I Believe In: Conversations about Judaism (New York: Free Press, 1994) 209 (interview with Chaim Potok). 47 David Hartman, A Living Covenant: The Innovative Spirit in Traditional Judaism (New York: Free Press, 1985) 9.

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48 Moshe Sokol, Judaism Examined: Essays in Jewish Philosophy and Ethics (New York: Touro College, 2013) 171. 49 Maimonides rules as follows: “Even though one is not obligated to acquire a [fourcornered] robe and wrap oneself in it in order to [fulfill the command of] tsitsit, it is not fitting for a pious individual to exempt himself from this command.” Maimonides, Code: Laws of Tsitsit, 3:11. 50 Jonathan Sacks, “The Hidden Spirituality of Tzitzit,” The Jewish Press (June 11, 2015). 51 Regarding both Judaism and Kantian theory, Hermann Cohen writes: “We must not be ‘volunteers of morality.’ Kant might have learned this expression from a Jewish philosopher or from the Talmud itself: ‘Greater is the man who acts in obedience to the commandment than without commandment.’” Hermann Cohen, “Affinities” 81. The reference is to BT-Kiddushin 31a. 52 Seeskin, Autonomy in Jewish Philosophy 48. Seeskin also writes that for Hermann Cohen, God’s laws are such that any rational person would accept them of their own will. Ibid. 53 Hartman, in A Living Covenant 60–2, discusses the contrast between Leibowitz’s view and Erich Fromm, Psychoanalysis and Religion (New Haven: Yale UP, 1950). Fromm calls this positive freedom: the individual’s ability to live actively and spontaneously. Erich Fromm, Escape from Freedom (New York: Farrar & Rinehart, 1941). 54 Joseph B Soloveitchik, The Lonely Man of Faith (New York: Doubleday, 1965) 80. Soloveitchik writes extensively of autonomy in freely choosing to act to follow God’s law, but also of the “recognition of the obligations imposed by revelation which expropriates human will …” Sokol, Judaism Examined 187 n74 (reference omitted). 55 Sokol sees Soloveitchik in his early writings envisioning a resolution, and in his later writings seeming to believe that the tension will not fade: human beings are to “live out the autonomy/heteronomy polarities in a dialectical fashion, fully embracing each side of the dialectic.” Sokol, Judaism Examined 204. 56 God blesses Abraham that his descendants would be like stars in the sky and sand on the beach: reflecting both sky and earth, looking both up and down, high and low. I extend thanks to Tanya White for this insight. 57 Falk, “Can Judaism Incorporate Human Rights?” in On Liberty, ed Frank 114. 58 Hartman. A Living Covenant 39, on BT-Berakhot 61b. 59 Soloveitchik, The Lonely Man of Faith 12; Soloveitchik, Halakhic Man 81. “The peak of religious ethical perfection to which Judaism aspires is man as creator.” Ibid 101. 60 Gottlieb Zornberg, Genesis: The Beginning of Desire 28 (Rashi on Psalms 75:4). “Resh Lakish [in BT-Shabbat 88a] taught: God made a condition with the works of the Beginning – If Israel accepts the Torah, you will continue to exist; if not, I will bring you back to chaos.” Ibid 27. People create by giving meaning: “God ‘becomes’ the Creator of the world, only when the question of meaning has been decided by man.” Ibid 28, interpreting Levit. Rabbah 36:4 on Isaiah 43:1. 61 BT-Shabbat 119b (R. Hamnuna); Etz Hayim: Torah and Commentary 12 on Genesis 2:1. 62 Soloveitchik, Halakhic Man 71, 94, 99. 63 Ibid 108. 64 Isaiah 58:6, 10, 12. Isaiah 43.12 tells of God’s calling the people as witnesses. The passage is taken to mean that without the people, God is not, as it were, the Lord. Greenberg, Voluntary Covenant n27, discussing Yalkut Shimoni Isaiah, vol 2 §454 (New York: Pardes, 1944) 795. 65 Seeskin, Autonomy in Jewish Philosophy 40. In entering the Covenant and making promises to Israel, God “is disavowing the right to act in an arbitrary fashion.” 66 Ibid 225. 67 See also Judah Halevi, The Kuzari 1:25. Interestingly, Halevi’s statement includes a plural and a singular reference: “Slaves to time are slaves; only a slave to (or worker of) God is free.” Perhaps it can be learned from this statement that the Jew has personal freedom in relation with God, and the Jewish people collectively are at risk

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where they do not have that relation with God. The significance of relations in Judaism is in focus in Chapter 4. The principle of halacha whereby women are free from commandments of time is at issue in Chapter 6. Leibowitz, Judaism 22. Ethics of the Fathers 6:2 (R. Joshua ben Levi) and BT-Eruvin 54a (R. Aha bar Yaakov). The two terms are spelled the same in Hebrew, differing only with respect to a single vowel. Jonathan Sacks, Covenant & Conversation: The Birth of a New Freedom (Ki Tissa, 5772) 4 March 2012. Alex Maged also calls herut an indication of positive freedom. Alex Maged, “The Philology of Freedom: A Diachronic Analysis of Herut and Hofshiut” in Kol HaMevaser (April 18, 2014). Seeskin, Autonomy in Jewish Philosophy 40. For example, BT-Yevamot 4a (the positive commandment of wearing fringes (tsisit) overrides the negative commandment not to wear garments mixing wool and linen). See Nahum Rakover, Human Dignity in Jewish Law (Jerusalem: Jewish Legal Heritage Society, 1998) (Hebrew) 50, 161. On dignity (kavod habriot) taking precedence over other commands, and on affirmative deeds, see Chapter 4. Exodus 3:12. Ethics of the Fathers 6:2 (R. Joshua ben Levi). Interpreting Maimonides’ Guide for the Perplexed 3:43, White calls the move from the Passover holiday celebrating freedom from slavery to the holiday of Shavuot, celebrating the giving of the Torah at Mount Sinai, as a move from negative to positive liberty. Tanya White, “The Process of Truth and impact of Time” Shavuot 5774 (May 30, 2014) https://contemplatingtorah.wordpress.com/2014/05/30/the-p rocess-of-truth-and-impact-of-time-shavuot-5774/ Jonathan Sacks, A Letter in the Scroll: Understanding our Jewish Identity and Exploring the Legacy of the World’s Oldest Religion (New York: Free Press, 2000) 120. Ethics of the Fathers 2:16 (R. Tarfon). Hartman, A Living Covenant 31, 98. Ibid 23. Leibowitz defines man’s liberty as “liberation from his subjugation to the agent of raw nature.” Leibowitz, Judaism 29. I am of course not attempting to justify slavery, but note that it was widespread in the Biblical age and understood as an absolute power by the slave owner, not limited by time period or ethical code. Slavery in Biblical Judaism has been analogized to current-day notions of paid employment. Rashi’s commentary on BT-Kedushin 22b. The laws of slavery show other elements of freedom as well. For instance, the Talmud records a view that a slave whose master puts on him phylacteries (teffilin) – which proclaim God’s unity and the acceptance of the commandments – goes free. BT-Gittin 40a (R. ben Shila citing Joshua ben Levi). The Bible’s proclamation (Deut. 23:16) that one may not return a slave to the master is examined in BT-Gittin 45a. A year is added beyond the 49th year as a technical matter, to complete the cycle. Spiritual reasons are offered as well, with the fiftieth year symbolizing going beyond the cycle and into freedom, as also circumcision on the eight day after birth goes beyond the cycle of seven, into pure freedom. I extend thanks to Rabbi Elisha Wolfin for exploration of this point. On the continuing power of the Biblical image of freedom, see Michael Walzer, Exodus and Revolution (New York: Basic Books, 1985). Isaiah 45:12 (the human is the goal of creation). Early Jewish thinkers underscoring this idea include Philo and Saadia. Lenn E Goodman, “Individuality” in Judaic Sources and Western Thought: Jerusalem’s Enduring Presence, ed Jonathan A Jacobs (Oxford: Oxford UP, 2011) 243. Soloveitchik, Halakhic Man 78.

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87 BT-Sanhedrin 37a on Mishnah 4:5, Avot de Rabbi Natan 31:2–3. The principle of universal dignity arising from this Talmudic passage is indicated in Chapter 4. 88 David Hartman, Conflicting Visions: Spiritual Possibilities of Modern Israel (New York: Schocken, 1990) 256. 89 Soloveitchik, Halakhic Man 78. Yet Soloveitchik contrasts the Jewish view of autonomy with the Kantian one, as is recorded below. 90 Goodman, “Individuality” in Judaic Sources, ed Jacobs 261. 91 Lenn E Goodman, “The Individual and the Community in the Normative Traditions of Judaism” in Autonomy and Judaism: The Individual and the Community in Jewish Philosophical Thought, ed Daniel H Frank (Albany: SUNY, 1992) 105. 92 Goodman, “Individuality” in Judaic Sources, ed Jacobs 248. 93 2 Kings 18:31; Micah 4:4; Zechariah 3:10. 94 Avot de Rabbi Natan 31:29a. Goodman, “The Individual and the Community” in Autonomy and Judaism, ed Frank nn10–11 [referenced from page 74]. 95 Sokol, “The Autonomy of Reason, Revealed Morality and Jewish Law” in Religious Studies 437 (“Man is, as it were, born free, responsible only to whatever it is that he rationally concludes to be morally necessary and a priori … . And the theist is just as convinced that man … is not free of the responsibility to choose in a particular way.”). Sokol’s analysis, I think, bears a 20th century existential gloss on the Kantian concept of autonomy, when he writes: “A convinced Kantian might argue … that it follows from man’s being a rational agent who is free, that he is responsible only if he chooses to make himself responsible.” Ibid. As to Judaism, Sokol writes: “in obeying God’s command … we are rationally deciding that the surest means of knowing what is moral is by relying on … revelation.” 96 Ecclesiastes Rabbah 7:13. 97 John Steinbeck, East of Eden (Suffolk: William Heinemann, 1952) (Pan Books, 1963) 288–9 ((ch 24(2)), 491 (ch 47(2)). 98 Kim Treiger-Bar-Am, “Choice and Obligation” in Jewish Thought and Spirituality: UVacharta Ba-Chayim, eds David Birnbaum and Martin S Cohen, vol 8 (New York: New Paradigm Matrix, 2018). 99 Maimonides, Code: Laws of Repentance 5:1. Arthur Hyman, “Aspects of the Medieval Jewish and Islamic Discussion of ‘Free Choice’” in Freedom and Moral Responsibility: General and Jewish Perspectives, eds Charles H Manekin and Menachem M Kellner (Bethesda: Univ Maryland, 1997) 143. Hermann Cohen’s comparison of the capacity to turn away from sin to Kant’s sense of the sovereignty of the self is relayed in Chapter 1. 100 Manekin, “Introduction” in Freedom and Moral Responsibility, eds Manekin & Kellner 10 (Saadia Gaon and others in the 10th century). 101 Avivah Gottlieb Zornberg, The Murmuring Deep: Reflections on the Biblical Unconscious (New York: Schocken, 2009) 107–8. God must hide, for our spiritual independence, and “must remain elusive to the conclusive grasp of reason so that man may retain his intellectual freedom.” Eliezer Berkovits, “The Encounter with the Divine” in Essential Essays on Judaism by Eliezer Berkovits, ed David Hazony (Jerusalem: Shalem, 2002) 229. The claim that this elusiveness also enables faith, which certainty would deny, is recorded in Chapter 1. 102 Ethics of the Fathers 3:15. 103 Ephraim Elimelech Urbach, The Sages: Their Concepts and Beliefs, trans Israel Abrahams, vol 1 (Jerusalem: Magnes-Hebrew Univ, 1975) 257–8. 104 Maimonides, Code: Laws of Repentance 6:5. 105 Maimonides, Guide for the Perplexed 2:48; Hyman, “Aspects of the Medieval Jewish and Islamic Discussion of ‘Free Choice’” in Freedom and Moral Responsibility, eds Manekin & Kellner 147. Similarly, for Aristotle, human actions are caused but not determined. Ibid 151–2 (on the analysis of Richard Sorabji (citation omitted)). Maimonides’ position, that choice is motivated by the powers of practical reasoning and

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deliberation of one’s true self, is likened to Kant’s. Josef Stern, “Maimonides’ Conceptions of Freedom and the Sense of Shame” in Freedom and Moral Responsibility, eds Manekin & Kellner 231. Manekin, “Introduction” in Freedom and Moral Responsibility, eds Manekin & Kellner 10. The Talmud also offers a view that people have responsibility (namely, are held accountable) even while asleep. BT-Baba Kama 26a. See also Urbach, The Sages 267 (BT-Shabbat 32a notes that the man who falls was destined to fall, but the sin of the house-owner caused him to fall, as taught by the school of Ishmael). Daniel J Lasker, “The Obligation of the ‘Parapet’ and Moral Responsibility” in Freedom and Moral Responsibility, eds Manekin & Kellner 153, 164. Compare Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard UP, 2011) 221 (relating the free will challenge to the fundamental ethical responsibility to live well). Lenn E Goodman, “On Liberty Reconsidered” in On Liberty, ed Frank 19. Yoram Hazony, The Philosophy of Hebrew Scripture (Cambridge: Cambridge UP, 2012) 104, 138–9. Critique is free and frequent in the Bible. Amnon Shapira, “Free Thought, Speech, and Criticism in the Bible” in Between Authority and Autonomy in Israel’s Tradition, eds Ze’ev Safrai and Avi Sagi (Tel Aviv: United Kibbutz [Hakibbutz Hameuhad], 1997) (Hebrew) 443–7. The mistaken view of Judaism as supporting dogma is presented by Tertullian in his 2nd century comparison with Athens. Hazony argues that Tertullian meant Christian Jerusalem and Carthaginian Christianity, which was a faith of catechism and renunciation of the search for truth. Hazony, Philosophy of Hebrew Scripture 226, 251. Jewish law rejects textual fundamentalism, and depends upon human agency for interpretive creativity. Roberta Rosenthal Kwall, “IP and Jewish Law: A Comparative Perspective on Absolutism,” 22 Yale J of Law & Humanities 143 (2010). Ze’ev Levy, “Tradition, Heritage and Autonomy in Modern Jewish Thought” in Autonomy and Judaism, ed Frank 50. Rashi’s commentary on Genesis 1:26. This point is reviewed in Chapter 1. See Goodman, “Individuality” in Judaic Sources, ed Jacobs 244. The meanings of the uses in the Bible of the Hebrew verb shema were indicated earlier, including “to understand.” Rav Hirsch suggests that “venishma” indicates learning the Oral tradition. The Hirsch Chumash – The Five Books of the Torah, Sefer Shemos: Translation and Commentary by Rav Samson Raphael Hirsch, trans Daniel Haberman (Jerusalem: Feldheim Publishers, 2005) 530–1. I thank Rabbi Yair Silverman for this insight. Tamar Ross, Expanding the Palace of Torah: Orthodoxy and Feminism (Waltham: Brandeis UP, 2004) 218. Ezra 7, Nehemia 8. Halivni, Revelation Restored 83. The sage became more important than the prophet. Novak, Jewish Social Contract 79. It has been argued that the rabbis were not supporting the openness of interpretation, but a new line of authority: the rabbis rather than the prophets. Daniel Gordis, “Revelation: Biblical and Rabbinic Perspectives” in Etz Hayim: Torah and Commentary 1394. Menachem Elon, Jewish Law, History, Sources, Principles, trans Bernard Auerbach and Melvin J Skykes, vol 1 (Philadelphia: Jewish Publication Society, 1994) 190 (footnote omitted). The Oral Law has been said to reflect horizontality, and the Written Law verticality. Roberta Rosenthal Kwall, “Creativity and Cultural Influence in Early Jewish Law,” 86(5) Notre Dame L Rev 1933 (2011) 1938. Part ii explores the horizontality and verticality of the application (rather than development) of the law. David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton, Princeton UP, 2009).

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121 Avi Sagi, The Open Canon: On the Meaning of Halakhic Discourse, trans Batya Stein (London: Continuum, 2007) 188. 122 Greenberg, Voluntary Covenant. Greenberg writes also of the dignity of rabbinic Judaism, which affords these changes. 123 BT-Menahoth 29b (R. Judah). 124 Eliezer Berkovits, Not in Heaven: The Nature and Function of Jewish Law (Jerusalem: Shalem, 2010) 174–5. According to the Sages of 13th century France, Moses was told in the heavens that numerous possibilities of interpretation should be entrusted to the Sages of Israel of each generation. Ibid 78–9. 125 Elon, Jewish Law: History, Sources, and Principles, vol 1 267. 126 Jonathan Sacks, “Creativity and Innovation in Halakhah” in Rabbinic Authority and Personal Autonomy, ed Moshe Sokol (Northvale: Jason Aronson, 1992) 147. 127 Soloveitchik, Halakhic Man 99. 128 Ibid 81. 129 Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984) 5. 130 The “interplay of the subjective and objective elements of the law is inevitable and legitimate.” Aaron Kirschenbaum, “Subjectivity in Rabbinic Decision-Making” in Rabbinic Authority and Personal Autonomy, ed Sokol 86; ibid 82 (the “principle of equitable interpretation in the halakhah … [is a] built-in control over excessive legalism and formalism”). 131 Ibid 86; Berkovits, Not in Heaven 4 (logical thinking as common sense). 132 BT-Baba Metzia 59b. 133 Deut. 30:12. 134 Moses prophesies that after being exiled the people will return to the commands as they are not so difficult, and not so far away from us: not in heaven, but in the people’s very hearts and mouths. 135 Berkovits, Not in Heaven 71. The lessons drawn from the tale as to respectful relations are presented in Chapter 4. 136 BT-Shavuot 39a. 137 Exodus Rabbah 5:9. 138 Numbers Rabbah 13:15. Related is the view of the multiplicity of fragments of truth, relevant in Chapter 6. 139 Pesikta Derav Kahana (6th century midrash), cited by David Golinkin, “Is Judaism Really in Favor of Pluralism and Tolerance?” 9(6) Responsa in a Moment (Jerusalem, 11 Tammuz 5775-June 2015). For Yehuda Arye Leib Alter (“Sefat Emet”), writing on Numbers 1:2, each and every Jew has a particular knowledge of God’s greatness, according to the person’s own rung. “The Language of Truth: A Torah Commentary of the Sefat Emet,” trans Arthur Green (Jewish Publication Society, 1998) 222. A widespread belief from the 16th century on held “that the number of possible readings of the Torah was equal to the number of the 600,000 children of Israel who were present at Mount Sinai – in other words, that each single Jew approached the Torah by a path that he alone could follow.” Gershom Scholem, Kabbalah (Jerusalem: Keter Publishing House, 1988) 172. 140 BT-Avodah Zarah 19a records the house of R. Yannai as saying that whoever learns Torah from one rabbi never sees a sign of blessing. Namely, a student is required to study with different rabbis in order to be exposed to different interpretations. Golinkin, “Is Judaism Really in Favor of Pluralism and Tolerance?” 141 BT-Sanhedrin 34a (R. Ishmael). 142 Jerusalem Talmud-Sanhedrin 4:2 (R. Yannai). 143 Michael Rosensweig, “Eilu ve-Eilu Divrei Elohim Hayyim: Halakhic Pluralism and Theories of Controversy” in Rabbinic Authority and Personal Autonomy, ed Sokol 109. 144 Leon Wiener Dow, “Ópposition to the ‘Shulhan Aruch’: Articulating a Common Law Conception of the Halacha” in 3(4) Hebraic Political Studies (Jerusalem: Shalem, 2008) 360.

94 Freedom and Obligation 145 Immanuel Kant, Critique of Pure Reason, trans & eds Paul Guyer and Allen W Wood (Cambridge: Cambridge UP, 1998) A314/B370. 146 Etz Hayim: Torah and Commentary xx (“Introduction”). 147 Daniel Boyarin, Intertextuality and the Reading of the Midrash (Bloomington: Indiana UP, 1990). 148 Haim Cohn, Human Rights in Jewish Law 8–9. Former Israeli Supreme Court Justices Haim Cohn and Menachem Elon discuss extensively the role of custom in the development of Jewish law. Ibid; Haim Cohn, Human Rights in the Bible and Talmud, trans Shmuel Himelstein (Tel Aviv: Modern Books, 1989); Elon, Jewish Law: History, Sources, and Principles, vol 2 chapter 21, 880–944; Menachem Elon, “Sources and Nature of Jewish Law and its Application in the State of Israel – Part II,” 3 Israel L Rev 88 (1968) 542–51. Elon also discusses legislation the origin of which is entirely public. Elon, Jewish Law: History, Sources, and Principles, vol 1, 678–779 (“communal enactments”). 149 Seeskin, Autonomy in Jewish Philosophy 67–8. 150 Roberta Rosenthal Kwall, The Myth of the Cultural Jew (Oxford: Oxford UP, 2015). Women’s changing status has been seen to affect changes in halacha. 151 Ross, Expanding the Palace of Torah 50. Halacha is sometimes developed so as to legitimize existing commonly accepted practices, ibid at 94; alternatively, practice may move it forward, ibid 174–6. 152 Soloveitchik, Halakhic Man 153 n80 [referenced from page 66], as discussed in Chapter 1. 153 Lawrence J Kaplan, “Joseph Soloveitchik and Halakhic Man” in The Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon. 154 BT-Eruvin 13b (R. Aba, citing Shmu’el). On varying practices based on varying interpretations, see BT-Yevamot 14a, discussed in Chapter 6. 155 Ethics of the Fathers 5.17. Treating these two Talmudic sources together, see for example Adam Zachary Newton, The Fence and the Neighbor: Emmanuel Levinas, Yeshayahu Leibowitz, and Israel among the Nations (Albany: SUNY, 2001) 206 n40. 156 BT-Eruvin 13b (R. Aba, citing Shmu’el). This preference can be shown to teach the natural link between moral virtue and legal credibility. David Shatz, “Interpretive Pluralism” in The Jewish Political Tradition: Authority, eds Michael Walzer, Menachem Lorberbaum, Noam Zohar, vol 1 (New Haven: Yale UP, 2000) 339–40. There are also however accounts of violence between the two schools. Mishnah Shabbat 1:4, BT-Shabbat 17a. 157 Sagi, The Open Canon 210. 158 BT-Baba Batra 130b (Rava). 159 Mishnah Eduyot 1:5. 160 One must say that God gave the Torah as taught by the Sages, even if they were to err, according to Nahmanides’ commentary on Deut. 17:11 (trans CB Chavel). 161 He transgresses in his scholarship in an undefined manner. Jerusalem Talmud 2:1, Tosefta Hagigah 2:3, BT-Hagigah 15a. A modern rendering of the story appears in Milton Steinberg, As a Driven Leaf (USA: Behrman House, 1939). Elisha ben Abuya is posed in the Talmud to play the character role of the paradigm of the outsider. I extend thanks to llana Fodiman-Silverman for this insight. 162 Berkovits, Not in Heaven 171. Haim Cohn sees the rebellious elder doctrine in a more restrictive light – which does “not quite fit into the pattern of free exchanges and expressions even of dissenting opinions.” Haim Cohn, Human Rights in Jewish Law 116. Yet Cohn notes that the doctrine was more a protest against dissenters who defied the majority, rather than requiring a literal interpretation of the text. There is no record of any person being tried on charges of being a rebellious elder. Ibid 117. 163 Dow, “Opposition to the ‘Shulhan Aruch’” 359–60 (citation omitted).

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164 Zachary Braiterman, “The Patient Political Gesture: Law, Liberalism, and Talmud” in Judaism, Liberalism, and Political Theology, eds Randi Rashkover and Martin Kavka (Bloomington: Indiana UP, 2014) 251. 165 Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” 106 Harv L Rev 813 (1993) 857. 166 Berkovits, Not in Heaven 29, 38. 167 Haim Cohn, Human Rights in the Bible and Talmud 15; Haim Cohn, Human Rights in Jewish Law 12–13. 168 Haim H Cohn, “Áncient Jewish Equity” in Selected Essays (Tel Aviv: Bursi House, 1991). Former Justice Izhak Englard comments on whether Maimonides accepts equity. Izhak Englard, “The Problem of Equity in Maimonides,” 21 Israel L Rev 296 (1986) 331–2. On modern Israeli law and justice as a principle of equity, see CA 5587/93 Nahmani v Nahmani, IsrSC IsrLRep 1 (1995–1996) (Justice StrassbourgCohen, Justice Tal), and the further hearing CFH 2401/95 (1996) (Justice Goldberg). 169 Goodman, “The Individual and the Community” in Autonomy and Judaism, ed Frank 103. 170 Shubert Spero, Morality, Halakha and the Jewish Tradition (New York: Ktav, 1983); Berkovits, Not in Heaven 28–48. 171 BT-Babba Kama 83b. 172 BT-Baba Metzia 30b.

4

Dignity, Respect and Expression

Earlier chapters have shown the link between freedom and obligation requiring duties of respect. The nature of those duties of respect is here in view: respect for the freedom and dignity of the other. Dignity and respect are in a relation similar to that between freedom and obligation. Freedom entails obligation, and dignity entails respect. The duty of respect is not only correlative, but also intrinsic to freedom and dignity. Unlike the negative duty of non-interference, corresponding to the view of negative liberty as non-interference, the duty is positive. Freedom and obligation, and also dignity and respect, are seen to hold regarding expression. A positive conception of duty and of respect for dignity follows from the positive conception of freedom. The duty of respect is shown to require relationships of affirmative respect – involving intent, deed and concern. Obligation is part of the continuum of freedom, and relations of respect for the other are part of dignity. The self is to be respectful of the other not as a limit on the self but as part of one’s freedom and dignity. Freedom and dignity are linked. Both affirm the individual’s value and uniqueness. As with freedom, dignity requires respect of the other. Kantian and Jewish thought promote these ideas. For Kant, autonomy grounds dignity, and in Jewish thought, freedom and dignity are of the essence of the human being from creation. Both structures of thought take respect to be a duty. Kantian theory requires respect to be shown both by and for the autonomous being, and in Jewish thought, respect and dignity are signified by the same word (kavod). Also, according to both Kant and Judaism, duty requires affirmative acts of respect, rather than a passive, “let be” tolerance or neutrality. Both also put forward an ethic of communication. The chapter begins with an inquiry into the concept of dignity. Dignity for Kant is universal worth intrinsic to the rational being. While kavod in Judaism began with an ancient notion of honor as status derivative of God’s glory, the concept in Judaism developed in post-biblical times and now takes on the modern sense of the universal worth of humanity. As in other areas discussed earlier, the approaches of the two in defining dignity present an apparent conflict, and yet coincide. Respect presents another apparent difference between Kant and Judaism given the prominence of intent or acts, yet the similarity in their conceptions is once

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again brought forth. The care that respect requires involves the individual in relationships within community. Kantian theory and Jewish thought both frame models in response to the communitarian and feminist critique of atomistic individualism. Duties of respect are horizontal between individuals as well as vertical between the individual and authority – namely, the moral law. Those relations may be present today, in an age of globalization, through communities arising from global networks. The final section of this chapter turns to the ethics of communication. Both the autonomy of, and duties of, respect in expression are in view. Kantian theory and Jewish thought cohere in envisioning and demanding responsible relationships of freedom and dignity concerning expression. Part II looks to affirmative respect in practice in situations involving the communication of authors, and women’s voices in prayer.

I Dignity The term dignity, from the Latin dignitas, points to elevated rank within an established social hierarchy.1 In Roman times, dignitas implied important personal achievements manifested in the public sphere.2 The public nature of dignity is recalled by Jürgen Habermas viewing dignitas as about res public, regarding the fulfilling of a public duty.3 Related is the meaning that traditional societies adopted and continue to adopt upon a concept of honor as social status. Those awarded honor have prestige within a hierarchy,4 as is described by GWF Hegel5 and Thomas Hobbes.6 Even Kant speaks of positions of dignity attached to an office, as well as those of the nobility “which makes its possessors members of a higher estate.”7 Yet the Kantian concept as he generally describes it (Würde) and as it has been understood, is universal. A. Kantian Conception of Dignity The ground of dignity is autonomy, namely the capacity to self-legislate. According to Kant, a rational being is free with respect to all laws of nature, obeying only those which he himself gives and in accordance with which his maxims can belong to a giving of universal law. … [T]he lawgiving itself, which determines all worth, must for that very reason have a dignity, that is, an unconditional, incomparable worth … Autonomy is therefore the ground of the dignity of human nature.8 The capacity for rationality is a capacity for morality. Autonomy grounds dignity because autonomy is the source of morality; humanity possesses dignity because of the capability for morality.9 The dignity of human beings derives from moral duty.10 The Kantian conception of dignity, Würde, is “absolute inner worth.”11 As an end in itself, a rational being’s existence has absolute worth.12 Nothing can be

98 Freedom and Obligation substituted as equivalent of its value. Whereas price has a relative worth for which something else can be put in its place, dignity is above all price, and cannot be brought into competition or comparison.13 Dignity is unconditional.14 It is the value of a human being as a human being. Dignity is not dependent upon one’s status, except as a human being. Nor is it based on one’s actions, or virtuous conduct. For Kant, even where one chooses wrongly, one retains dignity. Dignity is not dependent upon a person being morally good.15 It is a valuation, yet not based on evaluation. By contrast, on some views, dignity is deemed conditional – as either present or absent. Such is the case where dignity is understood as a feeling, a sentiment,16 an attitude,17 or as self-respect created by the showing of respect from others.18 Kant also has a notion of conditional dignity: dignity is grounded both in the capacity for autonomy and the realization of this capacity.19 Kant asserts that there is a “certain sublimity and dignity in the person who fulfils all his duties.”20 Yet as with autonomy, the exercise of it derives from the capacity for it. Like with autonomy, so too dignity is unconditional at its core. Dignity is intrinsic and unconditional, and also universal, on a Kantian conception. As evident from Chapter 1, universality and particularity can cohere: the Kantian conception of dignity is intrinsic to the individual self, but universally so. It belongs to all individuals. The Kantian concept of autonomy grounding dignity allows for the universal internalization of moral standards. Dignity’s universality also founds equality, as the unconditional worth of the rational being is possessed equally by all. Is dignity a “lump of something invisible”21 that deserves respect? A critique of the Kantian concept calls it a “transcendental kernel,” which mires us in the metaphysical noumenal.22 On the contrary, Kantian scholars explain that dignity in Kant’s conception is not a value property.23 It signals our capacity for rational, moral thought and agency. The conception of dignity “relies on our broader understanding of ourselves (not reducible to empirical propositions) as capable of active thinking – a practical presupposition rather than a metaphysical foundation.”24 Following Kant, Enlightenment and democratic revolutions developed the notion of dignity as the worth of all. Jeremy Waldron recalls the prior understanding of dignity as status, and believes that dignity generalized the high rank or status of every human being from the early notion of hierarchical social status.25 James Whitman calls it a form of leveling, with an equalization of all.26 While the earlier, social character of honor was based on inequalities – for some to have honor in this sense it is essential that not everyone have it – the shift from the social to the internal allowed the development of the concept of equal dignity.27 Because individual human dignity is universal, it is equal. This modern concept of dignity “is the only one comparable with a democratic society”;28 it allows equality before the law. The modern conception of dignity stems from its Kantian roots. Dignity today is largely understood with the Kantian meaning of intrinsic, unconditional, universal human worth.29 It reflects an internalization of moral standards.30

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Dignity has gained widespread recognition as central to ethical and political theory. Ronald Dworkin argues that absolute moral values are built on dignity and self-respect.31 Meir Dan-Cohen understands respect for persons to be the preeminent liberal value, and puts forward a dignity principle.32 In addition to deontological conceptions of dignity today, perfectionist views whereupon individuals are to pursue human excellence may be taken as tending towards dignity, for example with Martha Nussbaum’s Ten Central Capabilities.33 As discussed earlier, perfectionism and teleology are also apparent in Kantian theory. Law relies on this notion of dignity. Rights,34 including human rights,35 depend upon intrinsic human worth or value. Habermas calls dignity “the moral ‘source’ from which all the basic rights derive their meaning.”36 Law itself can be deemed respect for dignity. Waldron suggests that law “embodies a crucial dignitarian idea – respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.”37 The legal notion of standing arises from the presence that dignity accords.38 Dignity and respect are widely upheld in a variety of international and constitutional systems of law, and the concepts have many judicial and legislative uses worldwide.39 A Kantian understanding of dignity is relied upon for instance in Germany and South Africa.40 B. Dignity in Judaism From the first chapter of the Bible, humans are said to have been created bezelem – in the image of God (Genesis 1:27). The notion dignity (kavod) appears first regarding God’s glory, but then was extended to all of humanity. In its subsequent and now modern usage, the notion is akin to the Kantian universal concept of the absolute worth of humankind. 1) Early Times Dignity has held a central place in biblical narrative and rabbinic commentary throughout the ages. The Hebrew word for honor or dignity, kavod, appears 200 times in the Bible, and tens of thousands of times in post-biblical Talmudic discourse with the sense of wealth, glory, greatness, majesty, and splendor.41 The term kavod began in biblical sources with the sense of divine splendor, for instance referring to God’s glory filling the Tabernacle (Exodus 40:34–5). It was then extended to all of humankind. The application of the idea of creation in the divine image from Genesis embodied a revolution, for this was the first appearance in Western culture of the idea of the sanctity of human life.42 The biblical revolution was in deeming kavod to belong not only to the prestigious and in particular to kings, but generalized to all humans.43 It departed from the notion of holding one’s function or performance in esteem, and relied on one’s essential human position and qualities.44 Yet the biblical concept indicated a hierarchy, and thus reflected the age-old concept of honor as status: while not a social hierarchy, it reflected the view of a hierarchy in the cosmic order. God is at the top of the ladder in the cosmos, with humans below that but above other creatures.45 Even if not indicating status in

100 Freedom and Obligation society, kavod was still a relative concept, denoting status in terms of humans’ relation to God. Moreover, the ancient biblical concept is derivative rather than intrinsic. The value of human beings derives exclusively from divine origin; human dignity is the result of our being created in the image of God. References in the Bible relate to man’s glory as because of God’s glory and man’s proximity to God.46 Only God, in whose image humankind was created, has intrinsic value.47 The derivative nature of human dignity is heteronomous, as put forward by former Israeli Supreme Court Justice Izhak Englard.48 It also implies a hierarchy, with the subordination of human dignity to the higher divine dignity.49 A shift came in Talmudic times with the rabbinic concept known as kavod habriyot, the “honor of the creatures.” The ancient biblical conception of dignity developed into a concept of intrinsic and unconditional worth of the human being. In the words of Haim Cohn: Kavod is first and foremost one of the attributes of God … But in Talmudic parlance kavod becomes more and more humanized, and the phrase kevod haberiot (literally, the honour of the creatures) may well be rendered human dignity.50 Nathan Rotenstreich calls it anachronistic to apply the notion of dignity to the biblical presentation, but believes we are entitled to it “as the Bible does present the view of the excellence of man, with man in the image of God to whom there is ascribed majesty and dignity.”51 The Talmud points to the value, equality and uniqueness of every individual. An oft-repeated Talmudic learning is that if a human strikes many coins from one mold, they all resemble one another; but God fashioned everyone in the stamp of the first man (Adam) – and none are identical. Hence each is obliged to say: the world was created for me.52 The concept of kavod ha-briyot has been taken to mean universal human dignity. Kavod ha-briyot founds equality.53 The concept is “so weighty and momentous that it is seen to set aside and supersedes even a divine injunction.”54 In other words, respecting human dignity displaces legal prohibitions from God. Kavod lends presence and weight to those who bear it. The root of the Hebrew word kavod indicates weight, or heaviness.55 It is used for example in the biblical narrative regarding the Tabernacle within which God’s glory (kavod) will be present and weighty (Exodus 40:34). In Jewish tradition, kavod is not necessarily heavy-handed, however. It may be accompanied by light-heartedness. The latter approach was displayed by the Bible’s depiction of King David, and the former by his wife Michal. King David dances with the ark of the Lord – leaping and dancing with the people, while sparsely dressed – and Michal loathes him for it. Michal challenges with irony the honor (kavod) that David would call upon himself in this way, and David responds that indeed in this way he will find honor (2 Samuel 6: 14–22). David’s understanding of kavod is a strong and weighty presence, but not a heavy or burdensome one; rather, it is light.56

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The image of obligations generally comprehended to be weights was discussed in Chapter 2: we speak of being “under an obligation” or “bearing an obligation.” It was argued that rather than weights flattening meaning, the weight of obligation and attachments can add meaning. Here another augmentation of meaning is in view, through the weight or presence of human dignity. The weightiness of dignity can also be related to the notion of someone’s presence, which is not to be disregarded. Kavod can be understood to signify a dignity that must be respected. Similar is Waldron’s relation of dignity to formal legal standing, or moral presence.57 While the biblical notion of kavod was one of standing in the cosmos, a modern concept of dignity triggers presence and legal standing. The modern concept of kavod in Judaism is in accord. 2) Modern View In modern Israel, dignity plays a central role in the public sphere: in the culture, intellectual history and self-image of the State. Dignity was integral to the Zionist narrative since the time of Herzl and Ben-Gurion,58 and has remained a strong part of the national lore.59 Contemporary Jewish scholarship relies upon the Talmudic definition of humankind’s dignity regarding value, equality and uniqueness.60 The similarity that the modern concept of dignity in Judaism and Israel bears with the Kantian concept has been noted by scholars.61 In brief here is a review of the law. Kavod is widely understood today in Israeli law as human dignity: the dignity of a person as a person.62 The legal concept is not far from a Kantian universal concept of human dignity. It is also a communal one. Pursuant to Israel’s Basic Law: Human Dignity and Liberty, 5752–1992 (“Basic Law”), dignity is a fundamental value.63 In the words of former Chief Justice Shamgar, this law protects the ability of the human being as such to forge his personality freely, as he wishes, to give expression to his aspirations and to choose ways to fulfill them, to make free choices … [and] to receive the proper attention of the society in which he lives.64 Similar to the Kantian notion that autonomy is the ground of dignity, former Chief Justice Aharon Barak believes that the right of dignity reflects the recognition that a human being is a free agent who develops his body and mind and social framework as he wishes. Human dignity is the autonomy of the individual will. It regards a human being as an end, and not as a means to achieve the ends of others.65 While Barak distinguishes his legal project from Kant’s, the interpretation of dignity in Israeli law may be assessed as not far from Kant’s. Barak states that he has no dispute with Kant, but aims to examine what human dignity means in a constitutional context, rather than a philosophical one. Barak contends that the content of human dignity will be set in accord with the perspectives of the enlightened Israeli public, taking account of the purpose of this Basic Law.66 Yet

102 Freedom and Obligation these views are based on the Bible as well as philosophical developments, such as those stemming from Kant. Barak acknowledges that “the contemplations of philosophers through the ages have influenced the formulation of the modern view of human dignity. Human dignity after Kant cannot be understood without relating to Kant’s view. Therefore, it is important to discuss his ideas.”67 Whether kavod is intrinsic or derivative of divine glory has been debated in the Israeli Supreme Court. The debate is apparent for example in the discussion of “dignity” where the justices use the phrase “image” (zelem) with or without indicating “God’s image” (zelem Elohim).68 The intrinsic, humanistic approach has been said to prevail.69 Debates aside, it has been accepted that dignity is unconditional and universal. Because all people are created “in the image,” bezelem, dignity protects everyone. Thus, a certain coherence is evident between the Kantian and Jewish concepts. C. The Jewish and Kantian Model Positive freedom poses a positive perspective on dignity upon the view of Kantian theory and Jewish thought. According to both, dignity arises from the freedom inherent in humans. For Kant, autonomy grounds dignity, and in Judaism, humans are free and with dignity insofar as they are created bezelem, in the image of God, and to God is attributed freedom and dignity. On the conceptions of both structures of thought, dignity is (and has come to be accepted as, in Jewish thought) intrinsic, unconditional and universal. Oftentimes the definitions given of dignity are negative ones, signaling how not to behave. Dignity is contrasted with dehumanization and degradation. The right to dignity is deemed a right versus humiliation.70 Indignity is often spoken of, indicating the opposite of dignity.71 Yet the development of a positive meaning is important.72 A dignity principle on a positive plane rather than the negative view taken by Mill’s harm principle has been put forward.73 Here what not to do is considered, but more so, the focus of discussion here is on what to do. Just as positive freedom moves away from the negative conception of liberty as noninterference and towards the positive conception of the capacity for tending towards morality, so too dignity may be understood positively. For Kant and in Judaism, dignity affirms the individual’s unique worth. Does the positive conception entail an illiberal stance, and allow coercion of the individual to pursue what is designated the good?74 The positive conceptions of freedom and dignity afford a view of the freedom and dignity of the individual, as well as the obligation of the individual to respect the other’s freedom and dignity. The positive view apparent in Kantian and Jewish thought is, then, necessarily liberal. A conception of liberal perfectionism is put forward. Dignity is at its essence respect. Respect and dignity are signified by the same Hebrew term, kavod. Israel’s Basic Law uses the same term to connote dignity and the respect due to it. Moreover, just as the concept of freedom is one of obligation, the positive view of dignity demands relations of respect. Kant and Judaism affirm the individual’s dignity and also that respect be shown to the other’s

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dignity. The Kantian categorical imperative requires consideration of others, and according to Jewish tradition, the individual is to be in respectful relations with others. Showing respect on behalf of humankind, and also within one’s community, comes to the fore. The demands of respect are developed in the following section.

II Respect Positive freedom means respect for morality. Discussion here moves from morals (as an inner code) to ethics. It is ethical behavior, and conduct towards others, that is in view. For Kant and in Judaism, from freedom arise duties of respect for the moral law, for God and for others – in relations between people. Relations of respect are, then, both vertical and horizontal. The individual bears duties of respect, as does society. A person must be shown respect and must show respect to others, as part of that person’s own dignity. For Kant, the duty of the autonomous rational agent is to respect the other, as a matter of the agent’s own dignity: “dignity of humanity consists … [in the] capacity to give universal law, though with the condition of also being itself subject to this very lawgiving.”75 The respect that dignity requires under Jewish law (halacha) is to be shown both to and by others. The failure of an agent to show respect for another’s dignity reduces the agent’s respect, rather than that of the person whom they have disrespected. The showing of respect by X to Y imbues dignity to X. Also in Jewish thought, it is the one who respects others that enhances an individual’s own dignity, rather than the one who receives respect. The Talmud’s Ethics of the Fathers teaches that one who is honored is one that honors others.76 Also the reverse is the case: the showing of disrespect by X to Y does not result in Y having less dignity, but rather reduces the dignity of X. For Kant, “the violation of the categorical imperative detracts from the actor’s dignity rather than from that of the victim.”77 The obligation intrinsic to freedom is the duty of respect,78 and the fulfillment of that obligation is a matter of dignity. Kantian autonomy necessarily dictates the categorical imperative, upon which one has a duty to respect others, as ends rather than as means. Also in Jewish thought, kavod is a duty.79 The poor must be shown gratitude for enabling the donor to fulfill his duty of charity.80 An affinity between Kantian and Jewish thought is demonstrated by the claim that the Kantian categorical imperative is a restatement of the biblical commandment to “love thy neighbor as thyself” (Leviticus [“Levit.”] 19:18).81 I do not mean to imply that for Kant or in Judaism dignity is earned or bestowed once duty is fulfilled and respect is shown. In both structures of thought dignity is intrinsic and unconditional. Dignity is constituted by respect: just as freedom is inextricably tied with obligation, so too dignity is with respect. Its essence is affirmed when the duty of respect is fulfilled. How is respect to be shown? Affirmative respect includes acts, intent and concern – such as for instance sympathy and compassion. An apparent difference between Kantian theory and Jewish thought is with regard to the prominence of

104 Freedom and Obligation moral intent or moral acts. Yet the similarity is once again brought forth: for both Kant and Judaism, respectful relations necessarily involve intent as well as action. Modern-day conceptions of respect are similar, in requiring deed, intent and concern, as well as relations. A form of respect that touches upon all three elements is considerate decision-making. Such consideration as a matter of respect is discussed here in theory, and in Part II as relevant to practice, regarding communication. A. Respect: A Kantian View For Kant, freedom entails obligation to respect the law,82 which denotes respect for the other.83 One must respect another’s dignity and the autonomy that grounds it.84 The duty to show respect is not only a social implication of Kantian ethics; it is at the very heart of Kantian autonomy. Kant’s moral doctrine leads “to an ethic of mutual respect and self-esteem,” as John Rawls affirms.85 The Kantian– Aristotelian tradition involves “moral and legal obligations to respect and care for the humanity in others as well as oneself.”86 Respect is owed to all, universally and unconditionally. Similar to the unconditionality of dignity, so too respect is unconditional, on a Kantian view. As Thomas Hill reflects: “Kant typically treats autonomy as an all-or-nothing trait that grounds a basic respect due to all human beings, as opposed to a variable respect earned only by the most conscientious.”87 Respect may be awarded conditionally, by degrees, to those deemed more or less worthy, or even be absent altogether. Moreover, respect as experienced describes a sentiment. These are conditional notions. Yet as with autonomy and dignity, the Kantian conception of the duty of respect is unconditional. Relations of respect ensue. Dignity calls for a duty of respect towards others. Kant asserts that we cannot adequately respect our own humanity unless we respect humanity in others.88 The Kantian view of respect requires relations and affirmative respect: intent, deed, and concern. 1) Relations of respect Because the categorical imperative requires one to consider which laws are universalizable, it requires the consideration of others. The categorical imperative also demands that one treat another as an end rather than as a means. The Kantian concept further involves others insofar as it relies on universal reason, namely reason that is held by and can be explained to others.89 These considerations of the other are forms of respect. In addition to considering others, Kant requires the promotion of others’ ends. For Kant, every rational being has a duty not only to avoid “intentionally withdraw[ing] anything” from the happiness of others, but also to “tr[y] … to further the ends of others.”90 The categorical imperative requires coming to the aid of others: one would make assisting others a universal law, so that one would receive

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assistance that one would wish for oneself. One has a duty to make another’s ends one’s own.92 The critique often leveled at the Kantian super-hero, portraying a lone man on a rock of isolation, is incorrect. This declaration by Iris Murdoch, for instance, is problematic: We are still living in the age of the Kantian man, or Kantian man-god … who confronted even with Christ turns away to consider the judgment of his own conscience and to hear the voice of his own reason … free, independent, lonely, powerful, rational, responsible, brave, the hero of so many novels and books of moral philosophy. … Kant … has provided Western ethics with its dominating image … his alienation is without cure. … It is not such a very long step from Kant to Nietzsche, and from Nietzsche to existentialism.93 Kantian man is characterized as believing he can make all moral decisions on his own. Yet this is far from Kant’s view.94 Kant’s concept of autonomy is often unfairly portrayed as narcissistic.95 While Kantian autonomy is repeatedly given the bad name of self-centered individualism, the Kantian being is reliant on others. The Kantian individual is also attached to others. The Kantian moral agent is situated, constituted by needs, interests, beliefs and connections.96 Kantian autonomy requires impartiality, but not impersonal detachment.97 Kant does not deny the empirical, phenomenological state; the negative freedom of Willkür is necessary for the positive freedom of the Wille. The duality of the phenomenal and noumenal can perhaps be reconciled thus, with the attached person acting on universalizable maxims.98 That attached individual is indeed embodied in a social network. Kant theorizes that, like trees, if people grow in isolation from each other they grow stunted, bent and twisted.99 In Charles Taylor’s view: Kant essentially integrates the free subject into the community of men. … If to be free is to follow the moral law, and to act morally is to see that the maxim of my action could be willed universally, then freedom requires that I understand myself as a human among other humans.100 The Kantian concepts of the realm of ends and the highest good are conceptions of community, as Paul Guyer has shown.101 Rational beings have a duty not only to better themselves morally but to bring about the highest moral good on earth, which requires being active in the world.102 Onora O’Neill comprehends Kantian autonomy as “manifested in a life in which there is respect for others and their rights.”103 The sociability that necessarily attaches to communication and aesthetics in Kant’s view is reviewed below. Thus in the Kantian view, the autonomous agent is not atomistic, nor isolated from others. The consideration of others that autonomy requires may be termed an ethic of care.104 That care involves showing affirmative respect.

106 Freedom and Obligation 2) Affirmative respect Positive freedom calls for affirmative respect. The intent to fulfill a moral duty is central to respect, yet acts of respectful behavior are necessary as well, according to Kant. Often presumed are dichotomies of intent v action, but Kant requires both. Also oft-presumed is the dichotomy of reason v emotion. While Kantian theory is based on the autonomous agent developing the moral law through reason, emotions exhibiting concern are also acknowledged: sympathy, benevolence, love and what Kant calls moral feeling. A. INTENT

For Kant, moral intent is superior to a moral act. If one “wants” to visit the sick, for instance, the act that follows is heteronomous behavior arising from inclinations of the Willkür. Morally worthy acts arise from the Wille. Namely, the rational being should act – carry out moral behavior pursuant to moral maxims – based upon the intention to follow the moral law. Only a person’s will is subject to moral evaluation. Kant begins his Groundwork of the Metaphysics of Morals by stating that nothing “could be considered good without limitation except a good will.”105 A good will, Kant continues, “is not good because of what it effects or accomplishes, because of its fitness to attain some proposed end, but only because of its volition.”106 Kantian obligations are not performance obligations, but bind agents to adopt as laws of their will only principles that meet specific requirements.107 Rather than an inclination, it is an action from duty that has moral worth.108 Michael Rosen says of the Kantian view of respect that the attitude that an agent displays may tell of the intent directing their actions.109 I believe that Rosen’s characterization of respect as attitudinal misses what Kant aims towards. It points to the psychology behind actions or of the agent conducting them, rather than the perceived duty centering on intent (as well as deeds). By labeling Kant’s view of respect attitudinal, Rosen likens Kant’s conception to Rosen’s own view of respect, which may indeed be called attitudinal: to respect is to treat another in a dignified manner. Rosen takes dignity as an adjective or adverb, indicating dignified treatment.110 Yet it is submitted that respect is neither a description of one’s attitude nor of one’s actions. I agree with Rosen pointing to respect-as-respectfulness.111 Indeed respect requires a certain form of behavior, including considerate or emotional decision-making, which may rely upon an attitude. But respect – as in “to respect another” – is a verb. Relatedly, Rosen equates dignity and respect, yet while the two concepts are intimately related, they are not equivalent. Equating them diminishes the impact of both of those concepts. Dignity indicates worth and the value of human essence. Rosen derides this view, calling it the positing of an intangible “transcendental kernel” possessed by all human beings.112 Yet I would not dismiss the frequent characterization of dignity as some-thing. For Kant, it is a capacity of active thinking. Other scholars

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consider that there is something irreducible about the human person, and regard dignity “as something quite specific, … as an idea of ‘inner freedom,’” in Christopher McCrudden’s words.114 Dignity may be perceived as a noun; indeed conceptions of dignity as a noun are widespread.115 By contrast, respect is the behavior required in response to dignity, and hence is a verb. Another difficulty with Rosen’s conception of dignity regarding dignified treatment is that it does not relate to relations of respect. It is about the agent’s behavior, rather than about the agent in relation to the other. Treatment is of someone; the agent receiving dignified treatment must be considered, and not only the agent displaying it. Rosen’s conception relies on a disembodied human self.116 In contrast, this view is contrary to the idea of respect as a verb entailing actions performed by the attached individual, with the intent to follow the moral law, in relation to others. B. DEED

The duty of respect entails not only intent but also action: behavior, in deeds. While the intent of an act defines its moral worth, duty entails action. The Kantian categorical imperative dictates that one must act only in accordance with maxims that one wills to become a universal law. Action is a duty: “duty is the necessity of an action from respect for law.”117 Its moral worth does not depend upon realization of the object of action,118 but the universal law of justice commands us to act externally, in accordance with maxims capable of serving as universal laws for all rational beings. Action, and not only intent, is necessary. What is the nature of the action? Respect for the law is respect for a person. One is not to wrong others; the duties of right include: “do not wrong anyone.”119 In addition to not harming others, affirmative action is required. As seen above, Kant advocates mutual aid. This duty comes about insofar as humanity is an end in itself, and also so that the universal law and duty have full effect on oneself:120 our receipt of help in times of need is dependent upon others taking us as an end in ourselves.121 Kant also describes the importance of visiting prisons, as an instance of the type of behavior necessary for the sharpening of one’s sympathy. Duty requires sympathizing actively, and so the cultivating of compassionate feelings.122 For Kant the importance of action is apparent in his portrayal of the biblical precept to love one’s neighbor as a principle of action. Kant underscores that the Bible does not command love as an inclination, but as beneficence from duty: it is practical love. While Kant distinguishes this principle of action from “melting sympathy,”123 emotions demonstrating concern play a role in Kant’s ethical theory. C. CONCERN

Emotions of concern are among the virtues. Kant’s position has been described as placing emotions beyond the will, and hence as having no intrinsic moral value; they distract us from attending to moral principles and doing our duty.124 Kant

108 Freedom and Obligation also derides the uses of emotion in religions, as in his view emotions take religion beyond a religion of reason and challenge the idea of “rational faith,” as discussed in Chapter 1. Yet along with intent and deeds, emotion also plays a role in Kantian ethics. In his aesthetic theory, Kant praises feelings.125 The primary place of reason in the Kantian system is not wholly to the detriment of emotion. The obligation of respect is a moral feeling self-wrought by reason, according to Kant.126 Kant refers to the “cultivation of the moral feeling.”127 Kenneth Seeskin contends that: “[c]ontrary to the way his critics portray him, Kant did not think that feelings are bad in themselves. They are bad only if they get in the way of rational self-control.”128 Emotions such as sympathy and benevolence advance the moral autonomous will. A panoply of feelings of respect are characterized as a motivator for moral action.129 For instance sympathy can spur moral action, such as upon prison visits – but only if led by practical reason.130 Love is conceived in a practical sense; it is not a feeling or delight; it is “the maxim of benevolence (practical love), which results in beneficence.”131 Kant writes extensively of virtues of love, beneficence, gratitude and sympathy.132 Such emotions are understood as duties. As with mutual assistance, Kant also terms love and sympathy duties arising from universal maxims.133 Hill explains that compassion is a universalizable maxim. Acting upon kindness to one’s family, for instance, is something one would reason that everyone ought to do.134 Affirmative respect is to be shown in relations. Yet while the Kantian conception of respect requires relations, it demands a certain distance as well. Kant declares that “the principle of mutual love admonishes [people] constantly to come closer to one another; that of the respect they owe one another, to keep themselves at a distance from one another.”135 After Kant, the notion of the closeness of relations that respect requires became even stronger. 3) Post-Kantian Views of Respect The freedom of the human being is commonly understood to entail a duty to respect the freedom and dignity of others.136 In philosophical views of respect since the time of Kant’s writing, many of the points apparent in Kantian theory can be identified. Respect is a social notion, involving relations among individuals. As Dworkin writes, “self-respect … entails a parallel respect for the lives of all human beings.”137 It requires affirmative behavior: in addition to intent and action, emotional elements are also present, as are evident in the calls for considerate decision-making. Kantian and Jewish notions of the particular and the universal standing together may be approached as a reply to the liberal concern for the individual, taken together with the communitarian concern for the communal group and the feminist concern for relations. Liberal theory has been critiqued for not sufficiently acknowledging the social side of human nature. A sole, atomistic individual is deemed to be championed in liberal thought. Communitarians dispute the modern atomistic “disengaged subject.”138 Michael Sandel critiques the Rawlsian notion, derived from Kantian

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conceptions, of theoretical figures behind a veil of ignorance. Taylor derides the contemporary devaluing of social bonds that connect the individual to the collective, which Taylor calls essential for the individual to define their true authentic identity.140 Feminist thinkers such as Carol Gilligan critique solipsistic autonomy and put forward a view of relational autonomy.141 On a feminist view, the human is to be perceived as with attachments made by choice – rather than necessary attachments, as on the communitarian view.142 Despite this critique, the idea of humankind as social, and as involved in networks of relations, goes far back in Western thought. For Aristotle, friendship is the bond that holds communities together.143 Unlike the contemporary view of rugged individualism, the classical liberal view acknowledged the human social nature and sense of belonging to a family and communal unit.144 Some scholars of modern liberalism have indeed adopted the notion of both individuality and the common good. TH Green perceives the individual and the common good as working together: the individual good is constituted in part by the good of others,145 and an individual can enjoy their own freedom only as a member of society that protects their rights.146 Even Isaiah Berlin, whose theory of negative liberty calls for individual rights, discusses people wanting and needing solidarity, fraternity and mutual understanding: “my ideas about myself, in particular my sense of my own moral and social identity, are intelligible only in terms of the social network.”147 Also Joel Feinberg and Robert Post affirm the individualism of autonomy as well as the self in relation with others.148 Michael Walzer advocates liberalism acknowledging the individual’s communal ties.149 Upon the view of freedom as relying on an attached individual, relations of respect come forward. Dawn Oliver asserts that dignity and respect are 139

on the face of it … individualist values. However, the values of dignity and respect are also civil or communitarian, since they require the position of the individual in society and in relation to others to be protected.150 Autonomy, dignity and respect establish a norm of civility. Rights of respect follow. Relational aspects of human flourishing are said to be necessary in order to maximize the recognition and protection of our dignity.151 Sandra Fredman underscores that human rights give rise to a duty to ensure dignity and respect, and to value relationships.152 Rather than negative liberty’s notion of non-interference, positive freedom entails positive notions of respect. Affirmative respect requires intent, action and concern. Intent may be present for instance in the approaches presented above of Dan-Cohen, whereupon respect is the recognition of the worth of every human being, or of Rosen’s view of respect as an attitude. Acts are entailed by positive freedom on a modern liberal view, to remove hindrances from the self and from others.153 Concern is also deemed consistent with the moral duty of respect, on a modern view. Green for instance takes what is considered a Kantian view in upholding “moral emotions and inclinations” such as benevolence.154 The

110 Freedom and Obligation necessity of emotions in rationality has been the subject of much recent discussion, for example by Martha Nussbaum.155 Contemporary approaches to respect that are affirmative, and involve all three elements (intent, action and concern), are discussed further in the Introduction to Part II. One perspective proposes considerate action and decision-making. Oliver calls for dignity and respect requiring such consideration, as upon the Kantian categorical imperative.156 Alon Harel too argues that dignity demands considerate decision-making.157 Duties of care in law, as well as socio-economic rights – often termed positive rights – require affirmative respect. Taking a genuine interest in the lives of others may be related. Dworkin writes that modern moral philosophy has mistakenly abandoned the classical Greek understanding of living well.158 Hence it may be said that freedom, and the dignity that freedom grounds, require affirmative relations of respect. B. Respect in Judaism Respect is relational. It is the others’ response to the dignity of the self. In Jewish thought as for Kant, one both owes and is owed respect. While respect is also a duty one owes to oneself – for Kant and in Jewish sources159 – in the instant analysis, it is the relations of respect towards others that are in view. Also, the Jewish law precepts regarding the duty of respect in the vertical relation to God are not the subject here, but the duty of horizontal relations for respecting others. While a point in Jewish law is not meant to be taken here, it is to be noted that a Talmudic passage calls for fulfilling duties both to fellow humans and to God.160 At some level the duty to human beings precedes the duty to God, recalling the precedence of dignity to certain divine commandments. For instance, there can be no atonement for transgressions until the wronged person is placated.161 The relational aspect of respect in Jewish thought is in view, from the time of the Bible and Talmud, and on through modern philosophical thought. In the creation narrative, the Bible depicts God as putting forward that it is not good for man to be alone.162 Jewish law from Talmudic times and on presents an extensive set of relational requirements ensuing from the duty of respect, which perceive the individual as fundamentally attached to their family, to community and to the greater world. The affirmative view of respect that is required in Jewish law and thought again involve intent, deeds and concern, but the order of discussion reverses the first two, given their emphasis in Jewish thought and law. 1) Relations of respect In Jewish thought the individual is autonomous and free, yet not atomistic in their independence. The individual is both “a moral agent and a counterpart of others.”163 The individual is taken to be in relation with others. Those relations forge community. The tradition both sanctifies the individual, and also values the community. In Judaism the universal and particular function together – as do the individual and community, as well as the private and public.

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A. BIBLE AND TALMUD

Relationships are detailed throughout the biblical narrative. The portrayal of the human in a community of relations was explored earlier, for instance with the tale of the binding of Isaac and its instruction to work towards continued relationships. Lessons from tensions and failures in relationships are brought forward for instance in the stories of Sarah and Hagar, Jacob and Esau, Joseph and his brothers (teaching parents to avoid the favoritism that Jacob showed to Joseph), and Moses and his wife Zipporah. As Jonathan Sacks advises, the first book in the Bible (Genesis) is a moral drama not of gods and kings, nor of the cosmos and the creation of the sun and stars, but of humans and their relationships.164 The Covenant entails relations between and among the people. In addition to its significance as a compact between God and the people, it is between the human members of the compact themselves. The Covenant was received by the people in community, as David Novak affirms.165 The people stood together in accepting the Covenant at Mount Sinai, and are deemed to be together in upholding the Covenant throughout the ages. Each is responsible for the other.166 The import of treating others in respectful relations is evident from what is indicated as leading to “holiness” in the Bible (Levit. 19), represented by not oppressing one’s neighbor or being unrighteous in judgment, withholding wages from an employee, placing obstacles before the blind, or cursing (even) the deaf. The import of relations is also highlighted in the Talmud. In the Talmudic tale of the Akhnai oven, the antisocial disgracing of a rabbi whose legal opinion was rejected by the majority was critiqued.167 The communal character of social life is underscored. Ties with others are to be akin to familial ties: language of family (“brother” and “kinsman”) is used in instructing how people are to treat each other (for example in Levit. 25:14, 25, 35–6, 39). The commandments are communal, repentance is communal, and both the reward for observance of the commandments – abundant agricultural produce – as well as punishment for nonobservance, is received by the community (addressed in the plural, Deut. 11:13–21).168 The command for self-perfection, to become holy, is indicated in the plural. The communal aspect of social life is highlighted when the Talmud records a rabbinic sage stating: either fellowship (hevruta) or death.169 Hevruta is also the word used to indicate the community of learners: Torah and Talmudic learning is done in hevruta, namely with others, rather than on one’s own.170 A quorum is also required for daily prayers. Insofar as the individual is integrated into the community, the common good comes to the fore. As Lenn Goodman relays, it requires the individual moral agent to seek the good of others: [I]t establishes bonds of fellowship and fellow feeling … not only a sense of common interests but an articulation of shared concerns, an identification of the good of another as one’s own concern, a sense of identification such that one regards oneself as being benefited when one’s fellow profits and injured when he or she is harmed.171

112 Freedom and Obligation In addition to the duty that the individual bears towards others in the community, the community bears a duty towards the individual. The community for instance is obligated to protect the individual from harm by others, and to assist individuals in the needs of life.172 Responsible relations are an ethical duty.173 Jewish thought does not envision a Kierkegaardian teleological suspension of the ethical; rather, the devotion to God and ethics in Jewish tradition are comprehended as functioning alongside each other. B. MODERN JEWISH PHILOSOPHY

The biblical and Talmudic discussion of ethical requirements regarding responsible relations continues through to Jewish philosophy in modern times as well. Classical Greek philosophy’s concern with detached abstractions is contrasted with Jewish philosophy’s concern with engagement, which is not about subjectivity versus objectivity but about intersubjectivity.174 The ethics of respectful relations between people are underscored by the eminent modern Jewish philosophers Martin Buber and Emmanuel Levinas. “In the beginning is relation,” in Buber’s words.175 According to Buber, the self is constituted through relation with the other: “Through the Thou a man becomes I.”176 Also the other becomes a Thou only when the I says Thou to them.177 The I–Thou relation shows the analogy between Kant and Judaism regarding ethical relations: the I views the other as a subject rather than an object, like the Kantian directive in the categorical imperative to treat the other not as a means but rather as an end.178 For Levinas, ethics are set ahead of metaphysics,179 and intersubjectivity is an ethical structure. The other takes moral priority over the self.180 Levinas describes the moral significance of the face-to-face encounter. Respect involves looking at the other closely: “re-spect” is a repeated spectating. Buber’s conception of I–Thou and Levinas’ theorizing of the face-to-face enrich the meaning of one’s relation with another human being.181 The highlighting of ethical relations presents a shift from other philosophical positions. Unlike Descartes, for whom the human is understood as an ego, and unlike deconstructionist French philosophers who abolish human subjectivity, Levinas transforms the traditional conception of the human self: “The whole of my concrete existence … is determined by my orientation towards the Other.”182 Also Buber’s thinking is “radically opposed to that of the Danish philosopher Soren Kierkegaard, who thought that one had to turn one’s back to the world in order to become … an individual or unique being before God.”183 The obligation of respect for the other arises. For Buber, in the I–Thou relation one takes on responsibility for the world.184 For Levinas, the alterity of the other person has the moral significance of an obligation.185 The very presence of another (l’autre) makes one infinitely responsible,186 and obligates one to respect their right to life.187 Also according to Hermann Cohen’s philosophy of encounter, it is with the taking on of responsibility for the other that the self becomes an I.188

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2) Affirmative respect In Judaism, as in Kantian theory, the respect obligated upon freedom is affirmative. A contrast may be presumed between Kantian and Jewish thought: for Kant intent is supreme, and in Judaism the act takes precedence. Kant critiques Judaism for relating only to external acts, and argues that the Ten Commandments “are directed to absolutely nothing but outer observance.”189 Spinoza poses a similar critique of Judaism as made up of ceremony and ritual.190 Yet Kantian theory and Jewish thought are in accord. The ethical code of both requires intent and act, as well as concern. The same three categories that were shown to be apparent in Kantian theory on respect are presented below, yet the discussion starts here with deeds, given the different emphasis in Jewish tradition: acts – here, gemilut hasadim; intent – here, lishmah and kavanah; and concern – here, mercy and compassion. A. DEEDS

Judaism is a religion of deeds. The focus in Judaism is consistently “on the sort of life one is to lead in pursuit of [its] teachings, rather than on the teachings themselves.”191 Concrete acts of loving kindness – gemilut hasadim – are said to be one of the three things upon which the world stands.192 Because of their creation in God’s image, people are to aspire to follow God’s good example with deeds of kindness.193 The impact works in the reverse direction as well: God’s own holiness is deemed to be brought into effect though human action, as Hermann Cohen underscores.194 In the words of the biblical prophet Isaiah, God “is exalted through justice” and “sanctified through righteousness” (Isaiah 5:16). Abraham Joshua Heschel believes that God is to be found in gemilut hasadim: “The divine is disclosed in our sacred deeds.”195 Deeds of kindness are commanded as mitzvoth. The biblical commandment to love one’s neighbor as oneself (Levit. 19:18) is understood to direct concrete material actions that give it operational meaning; directly preceding it is the prohibition on standing “idly by the blood of thy neighbor” (Levit. 19:16). Jewish requirements regarding behavior are extensive in Jewish law and also in tales from the narrative tradition of Midrash. 196 The daily morning prayer begins with detailing commandments of gemilut hasadim, including hosting guests and visiting with a bride at the nuptial ceremony. Acts of justice or righteousness are in relation to others in need. Judaism requires caring for the sick and agricultural help to the poor, instructing to leave parts of the harvest for them (Deut. 14:28, 26:12; Levit. 19:9–10). Calling Judaism a religion of non-indifference, Donniel Hartman refers to the biblical instruction to care for your enemy’s donkey if found by the road or running astray (Exodus 23:4).197 Affirmative behavior is the foremost element in the Jewish tradition’s assessment of rightful action. Sacks makes this clear with his interpretation of the sacrifice known as the sin offering, brought only for a sin committed unintentionally or

114 Freedom and Obligation inadvertently. That “unintentional sins require atonement tells us that we cannot dissociate ourselves from our actions by saying: ‘I didn’t mean to do it.’”198 The reverse is also true: no culpability stands for a wicked intent without an overt act.199 B. INTENT

While the significance of deeds is prominent, acts must be accompanied by intent. The view discussed above pursuant to which mitzvoth are to be done lishmah, namely for the sake of fulfilling the commandment, shows act and intent functioning together. Subduing evil inclination is vital.200 The Talmud records an opinion that a transgression performed with good intention is better than a precept performed with evil intention.201 Motive is also significant, and acts of justice are evaluated according to the degree of mercy they afford.202 Jewish law is in this sense similar to the Kantian insistence on intent to fulfill moral duty. Kant’s critique of Judaism for focusing on external legislation has been called mistaken.203 The principle of lishmah emphasizes intent. Yeshayahu Leibowitz relies on the lishmah principle, yet his writings show deed and intent alongside each other in Jewish precepts. The significance of intent is evident from his explanation that observance of Jewish law is “the specific intentional acts dedicated to the service of God,” and Judaism’s focus on deeds is evident from Leibowitz’s argument that holiness is “nothing but halakhic observance.”204 As the actions become habit, so too will the inclination come forth. Acts being performed by rote enables striving towards “a religiosity of intention and consciousness.”205 Good acts, such as helping your enemy, will suppress the evil inclination.206 Hatred will dissipate. In addition to intent in the sense of lishmah, Jewish thought and Jewish law embrace kavanah. Kavanah takes on the sense of direction of the heart, namely a mindset directed towards the mitzvah. 207 Kavanah has a great role to play in Judaism. Prayer and other deeds are meant to be done with a prescribed intent, and numerous mitzvoth require kavanah. 208 Intent sometimes takes priority over deeds, for the sake of respect. If an act is (objectively) disrespectful but the intent was to show respect, the intent wins out and the act is accepted.209 The biblical narrative (2 Samuel 6:14–22) described earlier of King David’s dancing in the streets in a manner deemed disrespectful in the eyes of his wife Michal is an example: the dancing was accepted, as it was done with a good purpose.210 Also in Judaism’s spiritual tradition, the Hasidic approach adopts a devaluation of action in favor of the purity of intention and devotion.211 C. CONCERN

While Judaism focuses on deeds and at times requires intent, a necessary part of respect features compassion. Action is to be considerate. The term for the required acts of kindness, gemilut hasadim, is linguistically related to the word for mercy, hesed. Similar to Kant’s claim that sympathy triggers moral action, so too Judaism holds that emotions of concern can induce actions.

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Mercy and compassion are necessary elements of justice. While justice or righteousness (tzedek) is about concrete acts, it is to be contrasted with classical Greek abstractions.212 Justice (tzedek) is comprised of judgment (din – connoting law, argument, logic and punishment) as well as mercy (hesed) and the compassion that comes along with it (rahamim). 213 Mercy and compassion are part and parcel of both divine judgment and human goodness. Semantically related to tzedek (justice) is tzedakah, used to indicate charity, which is also obligated as an element of justice.214 God’s justice includes both judgment and mercy (Psalms 89:15).215 The Thirteen attributes of God appearing in the Bible (Exodus 34:6–7) and recited in prayers, indicate mercy (hesed) and compassion (rahamim).216 God created the world with both so that it will endure.217 The two names of God are deemed to indicate these two aspects of justice: Elohim is used when speaking of God’s attribute of judgment, and YKVK with regard to the divine attribute of mercy, compassion and kindness, as seen earlier. Created in the image of God, humans are to imitate God in compassion and mercy.218 A well-known biblical passage instructs: “Justice, justice shalt thou follow, that thou mayest live, and inherit the land which the Lord thy God giveth thee” (Deut. 16:20). Like divine justice, so too human justice must include mercy and compassion. Today, the administration of justice in many legal systems is based upon both strict judgment as well as compassion. Principles of equity fulfill the latter purpose. Modern Israeli law considers traditional Jewish sources in relevant situations, including a reliance on notions of justice, tzedek, to incorporate equitable principles of compassion, rahamim. Truth and peace function together, as do the right and the good.219 The heart is the seat of compassionate and considerate actions. The people are instructed to bring gifts for the building of the Tabernacle in the desert from the graciousness of their hearts.220 Also Judaism’s strong focus on reason presents no contradiction with the engagement of emotion. The interplay between reason and compassion is evident in a biblical phrase connoting wisdom of the heart (chochmat lev). The Hebrew term lev refers to the physical organ, the heart, but also to the mind. As Yoram Hazony writes: Classical Hebrew has no parallel to the later Western dichotomy between the “heart” as the seat of the emotions and the “mind” as the seat of thought. For the biblical authors, sentiments are a part of the process of human thought and of reason.221 Admittedly, one way to characterize the historic schism of Jewish sectors (the Hasidic movement and their opponents) in the 18th century was based on a distinction between emotions and reason. The former mystical movement praised emotion, while the latter movement emphasized reason upon a devaluation of emotion. Yet that debate shows that both elements have a place in Jewish thought as well as in Jewish history.

116 Freedom and Obligation Other emotions considered in Jewish thought and halacha are love and joy, as for instance in the commandment to love God, your neighbor and the stranger222 and for joyous celebration on the holidays,223 as well as the prohibition of jealousy (“Thou shalt not covet thy neighbor”).224 Matters of the heart are acknowledged in Maimonides’ letter to the Jews of Yemen when they were faced with forced conversion. C. The Jewish and Kantian Model It has been shown that in Kantian theory and Jewish tradition the concept of freedom entails obligation, and the concept of dignity entails the duty to respect others. Respect is conceived positively in relations, and requires affirmative deeds, intent and concern. Dignity must be respected upon the performance of compassionate actions with intent of the will (for Kant, the Wille) and of the heart (in Judaism, kavanah). Ethical relations of respect are paramount. A further layer of meaning is present in Judaism’s attention to obligated relations in community. While the duty of respect to others may be deemed heteronomous and hence contrary to individual autonomy,225 in Judaism the individual and community are in accord: The biblical absence of a sharp dichotomy between the interests of the individual and those of the community … either expresses naivete or marks a happier epoch than our own in the integration of groups, and of individual desires. ... [N]aivete, in that certain freedoms of the individual simply have not been entertained …; wisdom, in that the individual has not been isolated radically from a larger social body which extends across the bounds of personal atomicity not only over space but over time.”226 The freedom of the individual and responsibility to the other and the community are apparent regarding expression.

III Ethics of Communication Expression involves freedom and dignity, as well as obligations of respect. Kantian theory and Jewish thought affirm human nature as creative and expressive. Both are shown here to uphold freedoms and dignity in speech. Discussion then shows that both assert duties upon the free individual to respect the speech of others. An ethic of communication ensues. Respect is to be affirmative. The contemporary notion of the autonomy of expression has roots in Kantian theory, and has been expanded, including into law. The understanding today of the autonomy of expression must include obligation, to reflect the lessons gleaned from the conception of positive freedom. The freedom of expression entails duties of respect. Kantian autonomy is an ethic of care, and relations of care are to be present in expression. The Jewish tradition’s autonomy of interpretation and intellectual rigor also entails obligations requiring respectful relations.

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A. Dignity and Freedom of Expression: From Kant through to Today Kant attributes freedom to expression. Kantian theory shows a move from selflegislation and self-governance, to self-determination, and on to self-fulfillment, selfrealization and self-actualization. It becomes a view of self-expression. The lineage of Kant’s views may be traced according to philosophical theories developed since his time, and through to the modern conception of autonomy of expression. While O’Neill puts forward that Kant would not have found autonomy related to self-expression,227 and numerous scholars critique contemporary versions of autonomy for claiming a lineage to Kantian autonomy,228 I believe that the link can be made. I submit that Kantian roots are evident in today’s conception, and that the Kantian theory of autonomy as bound with duties of respect in relation ought to be extended to the current conception of autonomy of expression. 1) Kant Kantian autonomy is self-governance through self-legislation: as discussed earlier, according to Kant the rational being is capable of legislating moral action. This capacity allows for self-determination. Kant states that in the human being there is a faculty of self-determination, independent of coercion through sensuous impulses.229 The self-development of one’s capacities is describable as the self-actualization of humanity’s essence.230 This self-actualization is apparent in Kant’s analysis of communication.231 Communication in Kant’s view is an aim of human perfectionism. Communication to another is of one’s expression, and hence the link to autonomy of expression is complete. Autonomy of expression is apparent in the innate right of communication, in the freedom of thought and reason, and in creative expression. For Kant, communication is innate to the natural being. It is the “natural purposiveness” of man to “communicate his thoughts”; a human’s “natural being” is “bound to the inner end” of communication.232 As a human’s inner end, communication can be regarded as the end of actualization. Because it is his end, so then is “communicating his thoughts” a man’s innate right.233 For communication to be free, our thoughts must be free. In What Does it Mean to Orient Oneself in Thinking? Kant declares: The freedom to think is opposed first of all to civil compulsion. … [H]ow much and how correctly would we think if we did not think as it were in community with others to whom we communicate our thoughts, and who communicate theirs with ours! Thus one can very well say that this external power that wrenches away people’s freedom publicly to communicate their thoughts also takes from them the freedom to think – that single gem remaining in us in the midst of all the burdens of civil life, through which alone we can devise means of overcoming all the evils of our condition.234 Kant further indicates in his essay What is Enlightenment? that the public communication “of one’s reason must always be free.”235 An officer, while on duty,

118 Freedom and Obligation should not examine the utility of an order; but as a scholar can make remarks about errors in the military service and put these before the public for appraisal. A clergyman is bound to deliver his discourse to pupils in accordance with church creed, yet “as a scholar he has complete freedom and is even called upon to communicate to the public all his carefully examined and well-intentioned thoughts about what is erroneous in that creed.”236 Public communication demands individual expressive freedom.237 Also creative expression reflects freedom. Kant writes that the artist gives expression to forms and speaks through them: “[T]he spirit of the artist gives a corporeal expression through these shapes to what and how he has thought, and makes the thing itself speak as if it were in mime.”238 In Chapter 5 Kant is shown to argue for particular protection to books, while Kant indeed deems works of all art forms to be communicable expression. Creative expression is a reflection of autonomy. Akin to the self-legislation of autonomy, so too the genius “gives the rule to art.”239 Beauty itself is a symbol of morality.240 In addition to the expression of the artist, autonomous activity can be attributed to the recipient of art. With aesthetic cognition the imagination is free.241 Aesthetics are based on the judgment of the free imagination. The perception of the freedom of the imagination in the cognition of art by a recipient bears similarity to the modern view in art and in law of the reader’s freedom of expression. This modern (and postmodern) view is explored in Part II. 2) Hegel and On The Kantian conception of autonomy develops to one of autonomy of expression, with traces of Kantian thought throughout. Hegel uses the Kantian notion of autonomy, writing that in choice the will is free, and self-determination is freedom.242 Hegel then brings self-determination forward to self-development.243 Hegel further sets himself the task of synthesizing freedom and expression.244 The evolving conception of autonomy of expression reflects Romantic roots as well. Hegel is not a Romantic, but certain of his concepts share ground with Romanticism.245 The individual’s unique self-expression is glorified by Romanticism. The Romantics take the “classic ideal of personality as an organic unity of fully developed, freely active human powers.”246 For the Romantics, expression is crucial to self-development and self-realization.247 Artistic creation is deemed by the Romantics “essentially an act of self-expression,”248 and Kant’s influence is apparent in the development of Hegelian and Romantic views of artistic expression. As for Kant, also for Hegel, poetry is the expression of ideas, and is present in all of the art forms.249 Some Romantic ideas of creativity have roots in Kantian thought, such as the reliance on Kant’s model of spontaneous breakthrough creativity where the genius could create original art.250 John Stuart Mill’s idea of freedom also engages the freedom of expression and reflects Kantian roots. Mill is clear on the importance of self-development: for Mill, liberty is necessary so that “individuality should assert itself,” with the “free development of originality” and the complete development of one’s powers.251

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Mill links self-fulfillment and expression: Taylor finds in Mill’s vision of liberty “the expressivist notion that each man’s fulfillment is unique and cannot be foreseen, much less prescribed, by any other.”252 3) Modern Conception The modern conception of autonomy and freedom is one of autonomy of expression.253 As Berlin writes, “conceptions of freedom directly derive from views of what constitutes a self,”254 and today that is presumed to be an expressivist self. Expression is both an instrumental good and a deontological right, and its freedom is upheld in law. Expression is a central element in the nature of the self. The self is defined in terms of reason (as discussed in Chapter 1), but also expression. Since classical times, language has been considered the most basic feature of humanness – as the “major underlying capacity.”255 “It is through discourse, dialogue, and argument that we reveal ourselves as thinking, rational, and (in Kant’s sense) autonomous beings.”256 While the conception of autonomy as rational deliberative choice – such as put forward by Harry Frankfurt and in Rawls’ theory of the original position – is often traced to Kant,257 expression finds Kant’s support as well. Nor do rationality and expression conflict.258 Expression regards not only what the self is, but also what the self should become. Expression is related to goals towards which the human should aim. It is a perfectionist notion. The contemporary notion of self-development in expression coheres with earlier philosophical notions of actualization of one’s potential or capacity. “The new variety of individualism stresses self-expression … cultivating the inner human being, expanding the self, developing the special qualities, uniqueness of each person.”259 Modern scholarly conceptions of autonomy show a move as in Kantian theory from self-determination260 to self-development,261 and then to human flourishing262 and becoming one’s true self,263 which are considered to include expression. For Green, the good consists of self-realization “and the exercise of the very deliberative capacities that make one a moral agent.”264 People use free speech and association to deliberate the good.265 In law, the freedom of expression has been justified for its role in fostering selffulfillment266 and self-realization.267 The continental legal tradition holds the concept of autonomy or freedom as self-development, “largely due” to the influence of Kant, to favor “the free and harmonious unfolding of individuality.”268 Post-war constitutions such as the German Basic Law Article 2(1) include as fundamental the right to free development of personality. A basis for this concept is Kantian autonomy, and the autonomy of expression plays an instrumental role. Moreover, the autonomy of expression is taken to signify a deontological right.269 Rather than framing expression as instrumentally good for self-development, self-fulfillment and self-actualization, it poses expression as the essence of human nature. The right to speech arises out of the constitution of humans as speaking beings, as the US Supreme Court made clear in West Virginia State Board of Education v Barnette. 270 According to former US Supreme Court

120 Freedom and Obligation Justice Brandeis in Whitney v California, free speech is both an end and a means, thus recalling both deontological and consequentialist justifications.271 The autonomy of expression is presented as one of the foremost rationales of the US free speech and UK freedom of expression legal doctrines.272 The autonomy rationale in justifying free speech, as put forward for instance by Richard Fallon,273 Dworkin,274 Edwin Baker,275 and Frederick Schauer,276 may be identified as deontological. The deontological standpoint on the autonomy of expression in law is often linked with Kant.277 Also the link made from autonomy of expression to dignity recalls Kantian theory. Dignity is deemed to be furthered by the autonomy of expression, for example in the US Supreme Court ruling in Cohen v California. 278 Dignity is recalled by scholars commenting upon the freedom of expression, including Thomas Emerson279 and Louis Henkin.280 The Kantian link is made expressly by Jules Coleman and Jeffrie Murphy in terming the freedom of expression a natural right requiring respect of the speaker’s dignity281 and by Thomas Scanlon.282 Dworkin calls for the right to equal concern and respect, including upon free speech,283 and associates dignity with the Kantian notion of dignity.284 Modern Israeli law makes the connection between dignity and freedom of expression as well. While free speech principles were affirmed by the Israeli Supreme Court before enactment of the Basic Law: Human Dignity and Liberty, the protection of the freedom of speech has subsequently been judged to derive from the dignity protected by that Basic Law.285 It is the dignity and freedom of expression in Jewish tradition to which discussion now turns. B. Dignity and Freedom of Expression in Jewish Thought In the Jewish tradition, language is “the primary locus of our human life.”286 Speech is both powerful and free. Because of its power, and because freedom entails obligation, ethical guidelines follow; the respect that is required of and for the speaker is explored below. Biblical narrative relates to communication profoundly. Words create worlds. The creation of the world by God is in speech: “Let there be light” (Genesis 1:3). The ancient Book of Creation (Sefer Hayezira) forges a mystical link between the letters of the Hebrew alphabet and the creation of the world. The Decalogue at Mount Sinai, known as the Ten Commandments, is referred to in the Bible as the Ten Sayings (or Utterances). So too the human ability to speak is wrought with power. Humans are in the image of the Creator; just as God makes the natural world with words, humans make the human world with words.287 The human is God’s partner in the creation of worlds.288 Accounts of God’s affirmation of the significance of human speech abound in the Bible. God’s directive to Moses to speak to the rock in order to bring forth water is a command to recognize the power and beauty of speech.289 The flood in the biblical story of Noah is an “exile of speech,” and attributed to the lack of communication between people; Noah himself suffered from the malaise by being closed into his ark (teiva), which in Hebrew also means word.290 An early rabbinic commentary tells that when the

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Israelites brought jewels for the building of the Tabernacle in the desert, God responded that speech is dearer than all else.291 In addition to its power, speech is free. The Judaic tradition is replete with instances of uninhibited speech. The biblical narrative offers images of Abraham negotiating with God against the destruction of Sodom (Genesis 18), and Moses asking God not to destroy Israel (Exodus 32; Numbers 14) and to maintain a presence in the Israelite’s camp (Exodus 32, 33). The prophets Isaiah, Jeremiah, Ezekial, Havakuk, Jonah and Job argue with God.292 Critique is free and frequent in the Bible.293 Women’s voices – such as those of the prophetesses Miriam and Deborah – are present as well. Upon the covenantal relationship, the people became partners in a system of communication.294 The strong tradition of freedom of speech in the subjective interpretation of God’s law has been explored. There are said to be many different understandings of the Torah. Extensive rabbinic discourse on Jewish law is recorded in the Talmud, and rigorous debate in the development of halacha continues today. The discourse shows a “pattern of free exchanges and expressions of even dissenting opinions.”295 The freedom of speech entails obligation. The arguments of the biblical prophets show a lack of inhibition in speech and yet also an obligation to God, the rulers and the people. Prophets of God are obligated to speak out.296 A lesson drawn from the biblical tale of Jonah and the whale is that fleeing from God and the hesitance to speak out will bring disastrous consequences – in that case, with Jonah swallowed by the whale. The central obligation in focus here is the duty of respect that freedom entails, and that is necessary for the freedom of speech. C. Respect Speech in communication is relational. Autonomy has been shown to necessarily involve relationships; so, too, expression in communication to others necessarily involves relationships. As Taylor writes, one is a self only among other selves, and language is necessarily shared within a language community.297 Following Kant’s conception of autonomy as entailing obligation, those are to be relations of respect. Where the relations are understood in light of the moral concepts of freedom and obligation, an ethic of communication is born. In addition to the rights of speakers, Kant and Judaism uphold duties of respect among them. The relational aspect of Kantian autonomy, which follows from the categorical imperative requiring the consideration of others, regards communication. The sociability of Kantian theory seen earlier is recalled. Kant points to the communicative relationship for instance between the author and the public when he calls a book “a discourse that someone delivers to the public.”298 The author and reader carry on “the interchange of Thought.”299 Kant links communication to humankind’s sociability. Kant believes that “humanity means on the one hand the universal feeling of participation and on the other hand the capacity for being able to communicate one’s inmost self universally, which properties taken together constitute the sociability that is

122 Freedom and Obligation appropriate to humankind.”300 This sociability is natural to humankind: “sociability … [is] necessary for human beings as creatures destined for society, and thus as a property belonging to humanity.”301 Kant’s theory of aesthetics also calls for communication: “the satisfaction in the beautiful … [is] by means of universal communicability [and …] acquires an interest in relation to society.”302 The relational aspect of autonomy of expression and hence communication comes forth clearly in scholarship following Kant. Green perceives liberty in expression as a matter of relations: “an individual must seek to express his deliberative capacities in his relations with others.”303 Expression is considered social, as indeed self-fulfillment and self-development are in a social collective.304 Relations are central to an understanding of respect in the Jewish tradition, as well. Respectful relations are to be maintained in one’s own speech and in relation to others’ speech. The Bible and halacha put forth duties of respect to guide both one’s speech and one’s response to others’ speech. Principles requiring the ethical use of speech appear in the Bible. Misfortune followed the misuse of speech in biblical accounts: the earth swallowed Korach who spoke against Moses, the affliction of leprosy descended upon Miriam after her speech against Moses and his wife, and a plague followed the spies’ false report.305 The Bible instructs against wronging one’s neighbors (Levit. 25:17), and sages state that speech alone can constitute deception; speech is to be reliable, and to foster trust.306 Rabbinic commentary follows. The Ethics of the Fathers includes numerous warnings regarding speech.307 The Talmud lists five items for payment in case of injury to a human being independent of criminal liability, including assault through speech.308 Rabbinic commentary on the biblical prohibition of cursing God refers to words having the power to hurt or heal.309 Leprosy is said to follow damaging speech, even if true.310 The famous rabbinical commentator known as Chofetz Chaim expanded the Bible’s injunction against gossip.311 In the ethics put forward in modern Jewish philosophy, relations in speech are highlighted. The ethics of communication are prominent in Buber’s dialogic theory.312 Levinas too propounds that language is responsibility.313 This approach recalls the view of the Covenant at Sinai as a dialogic relation between the people and God. Buber writes: “The basic doctrine which fills the Hebrew Bible is that our life is a dialogue between the above and the below.”314 The freedom of expression doctrine in law protects expression in communication, and also the obligations in relation that ensue from it.315 It is submitted that autonomy of expression should today be understood to entail obligations of respect, correlatively as well as intrinsically. The obligation and duties of respect comprising autonomy ought to be extended to the modern conception of autonomy. As on Kantian theory and in Jewish thought, someone’s autonomy means that the person is to respect others and also is to be respected by others. Respect is to be affirmative, and shown in relations. Also the autonomy of expression must be understood to ground dignity, and to obligate respect by and for the speaker.

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IV Conclusion Freedom entails obligation, and dignity entails respect. Respect is to be shown to all, and both to and by the speaker. Duties of respect require relations, and respect is to be affirmative, involving deeds as well as intent. The display of concern, for instance upon the emotion of compassion, also bears weight. Indeed the effects on others of the communicative act of expression are to be cognized. Both vertical and horizontal duties are entailed. Analogous to the Bible’s account of the human being’s hierarchical relation to God in the cosmos, individuals are today deemed to bear rights of human dignity in their vertical relations with the state. Analogous to the Bible’s account of all human beings equally possessing dignity, each individual is obligated to respect the dignity of the other. Expression and communication are impacted. Freedom entails obligation, and dignity demands respect. While the autonomy of expression is often considered egotistical and narcissistic, as is Kantian autonomy, both involve relations and obligations. As with Kantian autonomy, as well as Jewish thought, expression is to be understood as entailing duties of respect to others. The ethic of communication explored theoretically in Part I illuminates guidelines in practice regarding expression in Part II. The expression of authors and of worshippers is in view. Chapter 5 explores the respect due for the autonomy of all authors, including so-called users. Copyright laws are interpreted in light of the meanings of honor and dignity put forward in Kantian and Jewish sources. In Chapter 6, lessons drawn from Kantian theory and Jewish thought are extended to expression in women’s prayer. The pluralism of voices, and the duty of respect for those voices, comes to the fore. In both situations – regarding authors and worshippers – respect is due for and from the speaker, as well as for the speech itself.

Notes 1 Jeremy J Waldron, “How Law Protects Dignity” (2012) NYU Public Law and Legal Theory Working Papers 317, at 14 (in Roman usage); Michael J Meyer, “Introduction” in The Constitution of Rights: Human Dignity and American Values, eds Michael J Meyer and William A Parent (Ithaca: Cornell UP, 1992) 4 (the Enlightenment); Robert C Post, “The Social Foundations of Defamation Law: Reputation and the Constitution,” 74 Calif L Rev 691 (1986) 715–6 (during the English Renaissance). A wide-ranging history is presented in Dignity: A History, ed Remy Debes (New York: Oxford UP, 2017). 2 Izhak Englard, “Human Dignity: From Antiquity to Modern Israel’s Constitutional Framework,” 21 Cardozo L Rev 1903 (2000) 1904. 3 Jürgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” 41(4) Metaphilosophy 464 (2010) 473. 4 Peter Berger, “On the Obsolescence of the Concept of Honor” in Revisions: Changing Perspective in Moral Philosophy, eds Stanley Hauerwas and Alasdair MacIntyre (Notre Dame: Univ Notre Dame, 1983); Julian Pitt-Rivers, “Honour and Social Status” in Honour and Shame: The Values of Mediterranean Society, ed Jean G Peristiany (London: Weidenfeld and Nicolson, 1965) 36–7. 5 GWF Hegel, Aesthetics: Lectures on Fine Art, trans TM Knox, vol 1 (Oxford: Clarendon, 1975) 557.

124 Freedom and Obligation 6 Thomas Hobbes, Leviathan chapter 10. 7 Immanuel Kant, The Metaphysics of Morals (1797) [“MM”] in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996) 6:328– 30. Kant writes that the rank of nobility should lapse once the opinion of the people no longer accepts it. Every person living in a state has the dignity (in this sense) of a citizen, except for criminals who become mere tools of another. Waldron refers to this Kantian use of the notion of dignity. Jeremy Waldron, “Dignity, Rights, and Responsibilities” (2010) NYU Public Law and Legal Theory Working Papers 242. On this Kantian passage, see AI Melden, “Dignity, Worth, and Rights” in The Constitution of Rights, eds Meyer and Parent 35 n4; Michael J Meyer, “Kant’s Concept of Dignity and Modern Political Thought,” 8(3) History of European Ideas 319 (1987) 320. 8 Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) [“GMM”] in Practical Philosophy 4:435–6. 9 Robin S Dillon, “Introduction” in Dignity, Character, and Self-Respect, ed Robin S Dillon (New York: Routledge, 1995) 15; Englard, “Human Dignity” 1918. 10 Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Harvard UP, 2012) 144 (on the Kantian view). 11 MM 6:435. 12 GMM 4:428. 13 GMM 4:434–5. 14 GMM 4:436. 15 Thomas E Hill, Jr, Dignity and Practical Reason in Kant’s Moral Theory (Ithaca: Cornell UP, 1992) 47 (“humanity in each person has dignity”). Yet Oliver Sensen reads Kant to indicate that a good will is of value. Oliver Sensen, Kant on Human Dignity (Berlin, Boston: de Gruyet, 2011). 16 Kant has a notion of moral feeling derived from reason, as seen below. 17 Diana T Meyers, “Self-Respect and Autonomy” in ed Dillon 224 (the subjective component of respect is attitude); Stephen L Darwall, “Two Kinds of Respect” in ed Dillon (recognition and appraisal respect). Dillon distinguishes the view of respect as sentiment or attitude. Robin Dillon, “Introduction” in Dignity, Character, and SelfRespect, ed Dillon 14–19. Rosen’s view of dignity as attitudinal is distinguished, below. 18 Robert E Goodin, “The Political Theories of Choice and Dignity,” 18(2) American Philosophical Quarterly 91 (1981) 97. 19 Immanuel Kant, Critique of Practical Reason (1788) in Practical Philosophy 5:78; Dillon, “Introduction” in Dignity, Character, and Self-Respect, ed Dillon 15. 20 GMM 4:440. However the inclination towards honor is not moral. GMM 4:398. It has been argued that Kant calls honor-as-status a concept harmful to morality, even while noting that honor is an “aspect of our sociality,” that is “a necessary yet insufficiently developed understanding of moral worth.” Alex Livingston and Leah Soroko, “From Honor to Dignity and Back Again: Remarks on LaVaque-Manty’s ‘Dueling for Equality’,” 35 Political Theory 494 (2007) 497. 21 Hill uses this term in describing Rosen’s critique. Thomas E Hill, Jr, “In Defence of Human Dignity: Comments on Kant and Rosen” in Understanding Human Dignity (Proceedings of the British Academy), ed Christopher McCrudden (Oxford: Oxford UP, 2013) 324. 22 Rosen, Dignity 55, 69–75. Rosen’s critique as well as the identification of dignity with something (what Rosen calls a “transcendental kernel”) is returned to, below. 23 Sensen, Kant on Human Dignity; Oliver Sensen, “Dignity: Kant’s Revolutionary Conception” in Dignity: A History, ed Remy Debes 237. 24 Hill, “In Defence of Human Dignity” in Understanding Human Dignity, ed McCrudden 323. 25 Waldron, “How Law Protects Dignity” 15. Also duty has a historical meaning related to rank, in the sense of office or station. Joel Feinberg, Rights, Justice, and the Bounds

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of Liberty: Essays in Social Philosophy (Princeton: Princeton UP, 2014). See also RB Brandt, “The Concept of Obligation and Duty,” 73 Mind 374 (1964), as referenced in Chapter 2. It was a leveling up in Europe, and a leveling down in the US. James Q Whitman, “‘Human Dignity’ in Europe and the United States: The Social Foundations” in European and U.S. Constitutionalism, ed George Nolte (Cambridge: Cambridge UP, 2005). Berger, “On the Obsolescence of the Concept of Honor” in Revisions, eds Hauerwas and MacIntyre 172. Charles Taylor, The Ethics of Authenticity (Cambridge, MA: Harvard UP, 1991) 46. Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” 19 EJIL 655 (2008) 679. Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, MA: Harvard UP, 1989) 151 (on Descartes). Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard UP, 2011); Ronald Dworkin, Freedom’s Law (Cambridge, MA: Harvard UP, 1996). Dworkin’s account of dignity is rooted in the human freedom to make life-shaping choices, as reflected in law. Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (Princeton UP, 2002) 150–1. Dignity-based deontological injunctions are considered in Alon Harel, Why Law Matters (Oxford: Oxford UP, 2014) 111–15. Martha C Nussbaum, Creating Capabilities – The Human Development Approach (Cambridge, MA: Harvard UP, 2011) 30–1. On the relation between dignity and rights, see Michael J Meyer, “Dignity, Rights and Self-Control,” 99(3) Ethics 520 (1989). James Griffin, On Human Rights (Oxford: Oxford UP, 2009) (human dignity is normative agency). Habermas, “The Concept of Human Dignity” 466. Waldron, “How Law Protects Dignity” 12. Ibid 2. Below a relation is proposed between Waldron’s view of dignity signifying moral presence and legal standing, with the Hebrew word for dignity – kavod – regarding weight or heaviness. Waldron’s view of dignity as deeming a person to have “the ability to control and regulate her actions in accordance with her own appreciation of norms” (ibid 2–3) reflects the Kantian conception of dignity grounded in autonomy, namely a rational being’s capacity for self-legislation. McCrudden, “Human Dignity and Judicial Interpretation of Human Rights.” The Universal Declaration of Human Rights is given various interpretations in jurisdictions around the world. Mary Ann Glendon, “Foundations of Human Rights: The Unfinished Business,” 44 Am J Juris 1 (1999). On Barak’s view of dignity involving judicial balancing, see the Introduction to Part II. McCrudden sees dignity’s common use in law as a placeholder for rights sometimes unidentified, yet that it confers on judges the discretion to make moral judgments. Christopher McCrudden, “In Pursuit of Human Dignity: Introduction” in Understanding Human Dignity, ed McCrudden 11–13. Rather than seeing dignity used by judges as a placeholder, some courts use it as an expressive norm. See Tarunabh Khaitan, “Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea,” 32(1) Oxf J Leg Stud 1 (2012). An example in German law (objektformel) is discussed in the Introduction to Part II, and in South Africa an example is the Constitutional Court case of Ferreira v Levin, 1996 (1) SA 984 (CC) para 52. Englard, “Human Dignity” 1904. Orit Kamir analyzes the term kavod as taking on four meanings: glory, dignity, honor, respect. Orit Kamir, Israeli Honor and Dignity: Social Norms, Gender Politics and the Law (Jerusalem: Carmel, 2004) (Hebrew). Yair Lorberbaum, “Blood and the Image of God: On the Sanctity of Life in Biblical and Early Rabbinic Law, Myth, and Ritual” in The Concept of Human Dignity in

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Human Rights Discourse, eds David Kretzmer and Eckart Klein (The Hague: Kluwer, 2002) 58. Nahum Rakover, Human Dignity in Jewish Law (Jerusalem: Jewish Legal Heritage Society, 1998) (Hebrew) 156. Englard, “Human Dignity” 1905–6. Nathan Rotenstreich, Man and His Dignity (Jerusalem: Magnes-Hebrew Univ, 1983) 22–3. The “biblical notion of man’s singular position places man in an inbetween status, occupying a position between the terrestrial world on the one hand and the divine realm on the other.” Ibid 26. Habermas traces a development from the status of human beings in a vertical relation to God as “lower” creatures, to horizontal relations between different human beings. Habermas, “The Concept of Human Dignity” 474. Psalms 24:7 is an example. First is God’s honor (Rakover, Human Dignity in Jewish Law n50); human honor derives from God’s honor (ibid 156), as the human is created in God’s image (ibid n36). Avishai Margalit, “Human Dignity between Kitsch and Deification” in Philosophy, Ethics, and a Common Humanity: Essays in Honour of Raimond Gaita, eds Christopher Cordner and Raimond Gaita (London: Routledge, 2011) 109. Englard, “Human Dignity” 1907. Chana Safrai, “Human Dignity in a Rabbinical Perspective” in The Concept of Human Dignity, eds Kretzmer and Klein 99. Haim H Cohn, “On the Meaning of Human Dignity,” 13 Yearbook on Human Rights 226 (1983) 247. Rotenstreich, Man and His Dignity 23–4. A “second justification for our anachronistic projection is the fact that subsequent presentations of the notion of the dignity of man based themselves on the Biblical view.” Ibid 24. BT-Sanhedrin 37a on Mishnah 4:5. This Talmudic statement is seen in Chapter 3 to support human freedom. Rakover, Human Dignity in Jewish Law 28; Gerald (Yaakov) Blidstein, “The Honour of the Creations (Ka-vod Ha-beriyot) and Human Dignity” in A Question of Dignity – Human Dignity as a Supreme Ethical Value in Modern Society, ed Yosef David (Jerusalem: The Israel Democracy Institute and Magnes-Hebrew Univ, 2006) (Hebrew) 98, 115. In the Jerusalem Talmud the phrase used is plural, perhaps indicating that kavod applies widely and in public. Rakover, Human Dignity in Jewish Law 60 n184. Haim Cohn, “On the Meaning of Human Dignity” 247 (human dignity takes priority over commandments), BT-Berakhot 19b (R. Kahana, R. ben Shaba). Talmudic discussions include those in BT-Kiddushin on Mishnah 1:7 (honoring parents precedes honoring God); BT-Baba Metzia 30b (one must not return lost property as the Torah directs, if it would disgrace the finder); BT-Megillah 3b (proper burial for the dead precedes Torah commands). Englard, “Human Dignity” 1908 cites also BTMenahot 37b-38a; BT-Shabbat 81b, 94b; BT-Eruvin 41b. There is much debate as to which laws are superseded by kavod. It is said that only rabbinic laws are preceded by kavod. Rakover, Human Dignity in Jewish Law 54, 160. Dignity overrides rabbinic legal prohibitions, and prohibitions from the Torah if they are about monetary rulings (namely between humans rather than between humans and God). Eliezer Berkovits, Not in Heaven: The Nature and Function of Jewish Law (Jerusalem: Shalem, 2010) 34; Blidstein, “The Honour of the Creations” 118, 126. Related is the precedence of positive commandments over negative commandments. BT-Yevamot 4a. The Hebrew terms are as follows: for dignity “kavod” and for heavy “kaved.” Englard refers to the relation of the terms. Englard, “Human Dignity” 1904 (on Medieval scholar Abraham Ibn Ezra’s commentary on Genesis 13:2). Lorberbaum defines the Hebrew root of the word dignity as signifying presence. Yair Lorberbaum, In God’s

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Image: Myth, Theology and Law in Classical Judaism (New York: Cambridge UP, 2015) 156, 165–9. In the biblical tale the root of the word that King David uses in objecting to the derision shown by his wife Michal (2 Samuel 6: 22) indicates light in contrast with heavy, or honorable. Moreover, David sees kavod as something to share with the people at large, rather than sequestered to a small aristocratic segment of the populace, as seemingly Michal would have it. David’s comment takes kavod to be communal. The communal nature of the word indicating holiness is discussed below. Waldron, “How Law Protects Dignity” 2. Kamir, Israeli Honor and Dignity 69. Englard, “Human Dignity.” An example is the project “Israel Speaks” at Israel’s Democracy Institute. For example, Irving Greenberg relies upon BT-Sanhedrin 37a. “Personal Service: A Central Jewish Norm for our Time.” http://rabbiirvinggreenberg.com/wp-content/ uploads/2013/02/AJ-gemilut-chassadim.pdf The similarity and also the differences are noted. Meir Dan-Cohen, A Concept of Dignity, 44 Israel L Rev 9 (2011); Kamir, Israeli Honor and Dignity 221 n8, 27–8 (conceptual similarity). Rakover, Human Dignity in Jewish Law 17 (the basic dignity is of man as man, and not as creature of God). Aharon Barak, Human Dignity (Cambridge: Cambridge UP, 2015) xxv, 117. CA 4952/92 Ploni v Almoni, IsrSC 48(3) PD 837 (1992) 843 (Justice Shamgar), discussed in David Kretzmer, “Human Dignity in Israeli Jurisprudence” in The Concept of Human Dignity, eds Kretzmer and Klein 167. Aharon Barak, The Judge in a Democracy (Princeton: Princeton UP, 2006) 85–6. HJC [High Court of Justice] 5688/92, Wekselbaum v Minister of Defense, IsrSC 47 (2) PD 812 (1993) 827 (Justice Barak). Barak, Human Dignity 117. Barak believes that the Kantian objektformel adopted by the German Constitutional Court to understand the right of human dignity is narrow and not appropriate for all constitutional systems. Ibid 118, 124–5 (citation omitted). The case discussed is where the German Constitutional Court struck down legislation authorizing the shooting down of a passenger aircraft aimed to kill others, as the Court found it would be using the passengers as a means to save those others. The term “zelem” is used without a reference to God for example in HCJ 355/79 Katlan v The Prison Service, IsrSC 34(3) PD 294 (1980) para 5 (Justice Barak); HCJ 2605/05 Academic Center of Law & Business v Minister of Finance, IsrSC 63(2) PD 545 (2009) para 35 (Justice Beinisch). Creation in the image of the Divine is referred to for example in EA 284 Moshe Neiman v Chairman of the Elections Committee for the Eleventh Knesset, IsrSC, 8 Israel L Rev 83 (1985) (Justice Elon); CA 506/88, Shefer v State of Israel, IsrSC 48(1) PD 87 (1993) paras 6, 20 (Justice Elon); and in the statutory language of the Equal Rights for Persons with Disabilities Law, 5748–1998 §1. Related is the debate as to whether a religious interpretation should be given to the provision of Israel’s Foundations Law regarding the legal relevance of Jewish tradition, discussed in Chapter 6. Kamir, Israeli Honor and Dignity 134, 143. While Kamir writes that “it is Barak’s approach which seems to prevail” (Orit Kamir, “Honor and Dignity Cultures: The Case of Kavod and Kvod Ha-adam in Israeli Society and Law” in The Concept of Human Dignity, eds Kretzmer and Klein 257), it is to be noted that Barak incorporates the reference to the tradition’s presentation of human creation in the divine image in Barak, Dignity 19. Eyal Benvenisti argues that Israeli courts have developed the concept of dignity following the European model. Comment by Eyal Benvenisti on Whitman’s paper: “European and U.S. Constitutionalism” in Science and Technique of Democracy, vol 37 (European Commission for Democracy through Law (Venice Commission) May, 2003) 94.

128 Freedom and Obligation 70 Tamar Hostovsky Brandes, “Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters” in Israeli Constitutional Law in the Making, eds Gideon Sapir, Daphne Barak-Erez, and Aharon Barak (Oxford: Hart, 2013); Avishai Margalit, The Decent Society (Cambridge MA, Harvard UP, 1996); Daniel Statman, “Humiliation, Dignity and Self Respect” in The Concept of Human Dignity, eds Kretzmer and Klein. 71 McCrudden, “Introduction” in Understanding Human Dignity, ed McCrudden 8. 72 Marcus Düwell, “Human Dignity and Human Rights” in Humiliation, Degradation, Dehumanization: Human Dignity Violated, eds Paulus Kaufmann et al (Netherlands: Springer, 2011). 73 Dan-Cohen, Harmful Thoughts 150–1. 74 In a fascinating analysis of human dignity as a constitutional law concept, Jacob Weinrib discusses the view that philosophical and religious conceptions of human dignity compel individuals to conform to ideas of the good life and enlist the coercive authority of the state to bring them about. Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge: Cambridge UP, 2016) 5. 75 GMM 4:440. 76 Ethics of the Fathers 4:1 (Ben Zoma taught: Who is honored? One who honors all). 77 Englard, “Human Dignity” 1919. Similarly, Aristotle writes that honor, the prize awarded for virtuous conduct, depends upon those who bestow it rather than those who receive it. Aristotle, Nichomachean Ethics iv.3, i.5. 78 Onora O’Neill, Autonomy and Trust in Bioethics (Cambridge: Cambridge UP, 2002) 83, and generally 73–95; Onora O’Neill, A Question of Trust (Cambridge: Cambridge UP, 2002); Onora O’Neill, Construction of Reason: Explorations of Kant’s Practical Philosophy (Cambridge: Cambridge UP, 1989) 81–165. As Düwell argues, a positive account of human dignity should deal with other-regarding obligations. Düwell, “Human Dignity and Human Rights” in Humiliation, Degradation, Dehumanization, eds Kaufmann et al. 79 Rakover, Human Dignity in Jewish Law 163. 80 Cohn, “On the Meaning of Human Dignity” 248–9, discussing Maimonides’ Code: Gifts for the Poor 6, and Shulchan Aruch Yoreh De’ah. 81 Lenn E Goodman, “The Individual and the Community in the Normative Traditions of Judaism” in Autonomy and Judaism: The Individual and the Community in Jewish Philosophical Thought, ed Daniel H Frank (Albany: SUNY, 1992) 110 n48. 82 GMM 4:440. “Immediate determination of the will by means of the law and consciousness of this is called respect … The object of respect is … the law.” GMM 4:401*. As Joseph Raz emphasizes, for Kant the “moral law, rather than people, is the object of respect.” Joseph Raz, Value, Respect, and Attachment (Cambridge: Cambridge UP, 2001) 134. 83 GMM 4:401* (“respect for a person is properly only respect for the law”). 84 GMM 4:434–6. 85 John Rawls, A Theory of Justice (Cambridge, MA: Harvard UP, 1971) 225. 86 Richard Wright, “The Standards of Care in Negligence Law” in Philosophical Foundations of Tort Law, ed David Owen (Oxford: Clarendon, 1997) 255. 87 Hill, Dignity and Practical Reason 79. According to Kant, even a slave or someone thought to be immoral has dignity. Ibid 202. The variable or conditional view of dignity is akin to honor as status. 88 Dworkin, Justice for Hedgehogs 14. 89 Gerald Dworkin, Theory and Practice of Autonomy (Cambridge: Cambridge UP, 1988) 60; Taylor, Sources of the Self 363. 90 GMM 4:430. 91 GMM 4:423. Hill, Dignity and Practical Reason 61–2. 92 MM 4:450; GMM 4:430 (mutual aid).

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93 Iris Murdoch, The Sovereignty of Good (London: Routledge, 1970) 80. The problem of Kantian autonomy and embodiment is also raised in Dan-Cohen, A Concept of Dignity 20. I agree with his characterization of the Kantian will as an idealized will, yet not with his view that it is abstract. Rather, it reflects a real person. 94 A correction to Murdoch’s view of Kant is offered by Jane Kneller, “The Aesthetic Dimension of Kantian Autonomy” in Feminist Interpretations of Kant, ed Robin May Schott (University Park: Pennsylvania State UP, 1997) 174–5. 95 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991) 61–6. 96 Barbara Herman, The Practice of Moral Judgment (Cambridge, MA: Harvard UP, 1993) 203–7. 97 David AJ Richards, “Rights and Autonomy” in The Inner Citadel: Essays on Individual Autonomy, ed John P Christman (New York: Oxford UP, 1989) 215. 98 JB Schneewind, “Autonomy, Obligation, and Virtue” in The Cambridge Companion to Kant, ed Paul Guyer (Cambridge: Cambridge UP, 1992) 322–3; Robin May Schott, “Feminism and Kant: Antipathy or Sympathy?” in Autonomy and Community: Readings in Contemporary Kantian Social Philosophy, eds Jane Kneller and Sidney Axinn (Albany: SUNY, 1998) 92–4, and citations at 97. 99 Kant, “Idea for Universal History with a Cosmopolitan Purpose” in KGS 8:22 (Prussian collection), cited in Jane Kneller, “Introducing Kantian Social Theory” in Autonomy and Community, eds Kneller and Axinn 7. 100 Charles Taylor, “Kant’s Theory of Freedom” in Conceptions of Liberty in Political Philosophy, eds ZA Pelczynski and J Gray (London: Athlone, 1984) 108. Taylor likens Kant in this respect to Rousseau, according to whom people are only truly free as citizens of the republic (thus recovering the ancient Greek view of republican freedom) through the concept of the general will. Ibid 110–12, 103. 101 Paul Guyer, Virtues of Freedom: Selected Essays on Kant (Oxford: Oxford UP, 2016) 275–302. 102 Kneller, “Introducing Kantian Social Theory” in Autonomy and Community, eds Kneller and Axinn 11. 103 O’Neill, Autonomy and Trust 83. While O’Neill continues that “Kantian autonomy is not relational,” she refers to it being “not graduated” – namely, it is unconditional. Ibid 84. O’Neill’s view of Kantian autonomy as regarding communication in relation rather than self-expression in isolation is set forth below. 104 Kim Treiger-Bar-Am, “In Defence of Autonomy: An Ethic of Care,” 3(2) NYU J Law & Liberty 548 (2008). 105 GMM 4:393. 106 GMM 4:394. 107 KE Boxer, Rethinking Responsibility (Oxford: Oxford UP, 2013) 52; Barbara Herman, “Obligation and Performance” (1990), reprinted in Herman, The Practice of Moral Judgment. 108 GMM 4:398–9; ibid 4:434. 109 Rosen, Dignity 143–4. Respect as attitude is referred to above. 110 Rosen refers to dignity as an adjective in the sense of dignified dress, and terms “dignified” an aesthetic. Rosen, Dignity 6, 35. On “dignified” forms of behavior, regarding how others perceive us, see Lois Shepherd, “Dignity and Autonomy after Washington v Glucksberg: An Essay about Abortion, Death, and Crime,” 7 Cornell JL & Pub Pol’y 431 (1998) 448; on the figure of speech “dignified,” Margalit, The Decent Society 53; and on the term dignitary, Melden, “Dignity, Worth, and Rights” in The Constitution of Rights, eds Meyer and Parent 35. 111 Rosen, Dignity 58, 62. Raz writes that for Kant, respect is not “a feeling, nor an emotion, nor a belief. … It is a way of conducting oneself.” Raz, Value, Respect, and Attachment 138.

130 Freedom and Obligation 112 Rosen, Dignity 55, 69–75. In contrast, Goodman thinks that a notion of the transcendent would strengthen norms of dignity and respect for liberalism. Lenn E Goodman, Religious Pluralism and Values in the Public Sphere (New York: Cambridge UP, 2014) 90, 97–8. I depart from his recommending a religious approach, as discussed in the Introduction. 113 McCrudden, “Introduction” in Understanding Human Dignity, ed McCrudden 57. Related is the ascription of kavod as entailing a presence in Biblical usage, as seen earlier. Early Biblical interpretations included corporeal or anthropomorphic senses. 114 Ibid 7. 115 Kamir also notes that dignity is a noun – both the predicate object and the subject, both what is given and the giver – namely the being with dignity, as subject, respects the dignity of another. Kamir, Israeli Honor and Dignity 30, 40. Latin words that come to be related to dignity are the adjective dignus and the abstract noun dignitas. Patrice Rankine, “Dignity in Homer and Classical Greece” in Dignity: A History, ed Remy Debes 22–4. 116 Compare Feinberg’s criticism that “Kant’s notion of respect for persons is … abstract and (oddly) impersonal.” Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self, vol 3 (New York: Oxford UP, 1986, 1989) 94. 117 GMM 4:400 (emphasis in original). 118 GMM 4:399–400. 119 MM 6:236. Included in the objective relation of law to duty, Kant includes the duty to others. MM 6:240. 120 GMM 4:430 (“the ends of a subject who is an end in itself must as far as possible be also my ends, if that representation is to have its full effect in me”). 121 MM 6:393. The section containing this passage is entitled: “The happiness of others as an end that is also a duty.” Ernest Weinrib draws from this passage support in Kantian theory for a positive duty on the state to provide for the poor. Ernest J Weinrib, “Poverty and Property in Kant’s System of Rights,” 78 Notre Dame L Rev 795 (2003) 812. Kant’s theory of justice and state governance, and the affirmative actions beyond intent that it entails, is discussed in Allen D Rosen, Kant’s Theory of Justice (Ithaca: Cornell UP, 1993). 122 Kant, MM 6:457. I extend thanks to Professor Ralph Walker for discussion of this passage. 123 GMM 4:399. 124 John Sabini and Maury Silver, “Emotions, Responsibility and Character” in Responsibility, Character and the Emotions: New Essays in Moral Psychology, ed Ferdinand Schoeman (Cambridge: Cambridge UP, 1987) 165–6. The authors argue that Kant’s exclusion of emotion relies on a faulty psychological model, which takes emotions as brute forces unconnected with higher mental functions. 125 Kneller, “The Aesthetic Dimension of Kantian Autonomy” in Feminist Interpretations of Kant, ed Schott 174–9; Iris Murdoch, Metaphysics as a Guide to Morals (London: Chatto and Windus, 1992) 9. This is so even while Kant indeed critiques the “Platonizing philosophy of feeling.” With Judeo-Christian overtones as the focal point of critique, as discussed in Chapter 1 regarding Kant’s essay “On a Newly Emerged Noble Tone in Philosophy,” Kant criticizes when “law is personified and reason’s moral bidding is made into a veiled Isis.” Catherine Chalier, What Ought I to do? Morality in Kant and Levinas (Ithaca: Cornell UP, 2002). 126 GMM 4:401; Critique of Practical Reason 5:76–80; MM 6:399. 127 Immanuel Kant, Critique of the Power of Judgment, eds Paul Guyer and Eric Matthews (Cambridge: Cambridge UP, 2000) 5:356; MM 6:400. Moral feeling is deemed the affective aspect of respect, in addition to its cognitive aspect, namely consciousness of the moral law. Philip Stratton-Lake, Kant, Duty and Moral Worth (London: Routledge, 2000) 38. 128 Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 168.

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129 Guyer, Virtues of Freedom 213; ibid 235–59 (moral feeling plays a causal role). 130 Otherwise amiable character habits may lead to moral action only by chance. Herman, The Practice of Moral Judgment 70–2. 131 MM 6:449 (emphasis in original). 132 MM 6:402, 6:448–52 (love); MM 452–8 (beneficence, gratitude, sympathy). See Treiger-Bar-Am, “Ethic of Care” 574–5, 577–8. 133 GMM 4:430. 134 Thomas E Hill, Jr, Autonomy and Self-Respect (Cambridge: Cambridge UP, 1991) 51. 135 MM 6:449 (emphasis in original); ibid 6:470. 136 Düwell, “Human Dignity and Human Rights” in Humiliation, Degradation, Dehumanization, eds Kaufmann et al. 137 Dworkin, Justice for Hedgehogs 255. 138 Taylor, Sources of the Self 514. Alasdair MacIntyre critiques the view of moral agency relying on passing judgment “from a purely universal and abstract point of view that is totally detached from all social particularity.” Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Bloomsbury Academic, 1981) 32. 139 Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge UP, 1982) 38, 95. There is a view, however, that “Rawls never really held that it makes sense to view individuals as socially unsituated.” Avital Simhony and D Weinstein, “Introduction: The New Liberalism and the Liberal Communitarian Debate” in The New Liberalism: Reconciling Liberty and Community, eds Avital Simhony and D Weinstein (Cambridge: Cambridge UP, 2001) 12. 140 Taylor, Ethics of Authenticity 27 (critiquing the demand of self-determining freedom that “I break the hold of all such external impositions and decide for myself alone”); Taylor, Sources of the Self 514. 141 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard UP, 1982). 142 Linda Barclay, “Autonomy and the Social Self” in Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self, eds Catriona Mackenzie and Natalie Stoljar (New York: Oxford UP 2000) 52–70; Jean P Rumsey, “Re-Visions of Agency in Kant’s Moral Theory” in Feminist Interpretations of Kant, ed Schott. 143 Aristotle, Nichomachean Ethics viii. A modern view of friendship as instrumentally good for perfectionism and its relation with liberalism is put forward by Thomas Hurka, Perfectionism (Oxford: Oxford UP, 1993) 134, 148. 144 Robin West, Caring for Justice (New York: NYU, 1997) 4–5 (the disconnected individual who prides himself on self-chosen life projects is other than the individual celebrated by classical liberals, who is connected). 145 David O Brink, Perfectionism and the Common Good: Themes in the Philosophy of T.H. Green (Oxford: Clarendon, 2003) 60, 142–4. One’s relations in speech are also crucial for Green, as seen below. 146 Maria Dimova-Cookson, T.H. Green’s Moral and Political Philosophy: A Phenomenological Perspective (New York: Palgrave, 2001) 122. 147 Isaiah Berlin, “Two Concepts of Liberty” (Oxford: Clarendon, 1958) in Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford UP, 1969) 155. 148 While Feinberg writes of individual autonomy (Feinberg, Harm to Self 27–51), he recognizes that the autonomous self is not disconnected from relationships or commitments (Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing, vol 4 (New York: Oxford UP, 1990) 81–123) (defending liberalism as able to provide a community-building ideology). See also Joel Feinberg, “Autonomy” in The Inner Citadel, ed Christman 27, at 33–4. While Robert Post characterizes autonomy as an individual norm (Robert C Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” 77 Calif L Rev 957 (1989); Robert C Post, “The Social Foundations of Defamation Law: Reputation and the Constitution,” 74

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Calif L Rev 691 (1986) 734–9), he notes the conflict between the concept of individual autonomy pursuant to the US Constitution and norms of civility (ibid). Michael Walzer, Politics and Passion: Toward a More Egalitarian Liberalism (New Haven: Yale UP, 2004). The union of liberalism and cultural affiliations is set forth by Yael Tamir, Liberal Nationalism: Studies in Moral, Political, and Legal Philosophy (Princeton: Princeton UP, 1993). Dawn Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999) 64. Oliver also places autonomy in the individualist camp, affirming the view that it can be both. Compare John Kekes, Against Liberalism (Ithaca: Cornell UP, 1997) 78, 69–80. Clemens Sedmak, “Human Dignity, Interiority and Poverty” in Understanding Human Dignity, ed McCrudden. Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford UP, 2008) 16. Dimova-Cookson, T.H. Green’s Moral and Political Philosophy 123. Moral theories relating to dignity are said to be about action. John Tasioulas, “Human Dignity and the Foundations of Human Rights” in Understanding Human Dignity, ed McCrudden 291. Brink, Perfectionism and the Common Good 98. “Green may see himself as … articulating Kant’s considered view more clearly than Kant did.” Ibid 98. Martha C Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge UP, 2001). Nussbaum analyzes the role of compassion in private and public reasoning. Neurological studies suggest that emotions play a part in rational thinking. Antonio Damasio, Descartes’ Error: Emotion, Reason and the Human Brain (New York: Putnam, 1994). The oft-debunked dichotomy between reason and emotion is referred to in Chapter 1. Oliver, Common Values 62–5. Harel, Why Law Matters 51. Dworkin, Justice for Hedgehogs 19. For instance, according to Kant, suicide violates a duty to oneself (GMM 4:429; MM 6:236) (a “duty of rightful honor” to oneself, to assert one’s worth), and Jewish law rules against euthanasia (CA 506/88 Shefer v State of Israel (IsrSC) IsrLRep 170 [1992–1994] (page 35); Blidstein, “The Honour of the Creations” 109). Self-respect enhances the honor of God. Rakover, Human Dignity in Jewish Law 156. Mishnah Shekalim 3:2 on Numbers 32:22; Proverbs 3:4. Mishnah Yoma 8:9 (R. Elazar ben Azaria). See Haim Cohn, Selected Essays 178 (“it was not sufficient for man to fulfill his duties towards God so long as he did not first fulfil his duties towards his fellow-men”). Dignity’s superseding even divine commandments is seen above. Genesis 2:18. It was also “not good” that during the Jews’ wandering in the desert Moses judged the people’s disputes alone, according to his father-in-law Jethro’s words of counsel. (Exodus 18:17). Lenn E Goodman, “Individuality” in Judaic Sources and Western Thought: Jerusalem’s Enduring Presence, ed Jonathan A Jacobs (Oxford: Oxford UP, 2011) 261. Jonathan Sacks, A Letter in the Scroll: Understanding our Jewish Identity and Exploring the Legacy of the World’s Oldest Religion (New York: Free Press, 2000) 79. While modern individualism comes with a tendency to view as primary a one-to-one “spiritual” relationship with God, the focus in Judaism is on the relationship of the community to God. David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton, Princeton UP, 2009) 78. BT-Shavuot 39a on Deut. 29:9–14. The tale was recounted in Chapter 3. It has been read to comment also on relations between humans and God; God’s response to the rabbinic decision to determine rulings of law on earth even where the message from the heavens differs may have

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been a tone of sarcasm rather than laughter with pleasure. Tova Hartman and Charlie Buckholtz, Are You Not a Man of God? Devotion, Betrayal, and Social Criticism (Oxford: Oxford UP, 2014) 66. Edward Halper, “Judaism and the Liberal State” in On Liberty: Jewish Philosophical Perspectives, ed Daniel H Frank (New York: St Martin’s, 1999) 64. Only Deut. 11:15 is addressed in the singular. BT-Ta’anit 23a (Rava). See David Novak, “Religious Human Rights in Judaic Texts” in Human Rights in Judaism: Cultural, Religious, and Political Perspectives, eds Michael J Broyde and John Witte, Jr (Northvale: Jason Aronson, 1998) 7; Avi Sagi, The Open Canon: On the Meaning of Halakhic Discourse, trans Batya Stein (London: Continuum, 2007) 211. BT-Ta’anit 7a. Goodman, “The Individual and the Community” in Autonomy and Judaism, ed Frank 80. Novak, Covenantal Rights 187. Goodman, “Individuality” in Judaic Sources, ed Jacobs 244. “Interview with Chief Rabbi Lord Jonathan Sacks (October 29, 2012)” in Jonathan Sacks, Universalizing Particularity, eds Hava Tirosh-Samuelson and Aaron W Hughes (Leiden: Brill, 2013) 117. Martin Buber, I and Thou (1937), trans Ronald Gregor Smith, 2nd ed (London: Continuum, 2004) 26. Ibid 28. Seeskin, Autonomy in Jewish Philosophy 183. Maurice S Friedman, Martin Buber: The Life of Dialogue (London: Routledge, 1955) 199–201. Goodman, “Individuality” in Judaic Sources, ed Jacobs 245. Richard A Cohen, “Emmanuel Levinas: Judaism and the Primacy of the Ethical” in The Cambridge Companion to Modern Jewish Philosophy, eds Michael L Morgan and Peter Eli Gordon (Cambridge: Cambridge UP, 2007) 244. Tamra Wright, “Self, Other, Text, God: The Dialogical Thought of Martin Buber” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 112. Adriaan Peperzak, To the Other: An Introduction to the Philosophy of Emmanuel Levinas (Purdue UP, 1993) 25. Ephraim Meir, Levinas’s Jewish Thought: Between Jerusalem and Athens (Jerusalem: Magnes-Hebrew Univ, 2008) 125 (citation omitted). Wright, “Self, Other, Text, God” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 112. Cohen, “Emmanuel Levinas” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon 245. Peperzak, To the Other 26. Emmanuel Levinas, Totality and Infinity, trans A Lingis (Pittsburgh, 1969) esp 187ff. Seeskin, Autonomy in Jewish Philosophy 177. The individual is in relation to others. Hermann Cohen, “Affinities between the Philosophy of Kant and Judaism” in Reason and Hope, trans E Jospe (New York: WW Norton, 1977) 218 (“selfhood ensues from the interaction between I and Thou”); Hermann Cohen, Religion of Reason Out of the Sources of Judaism (1919), trans Simon Kaplan (Atlanta: Scholars Press, 1995) 113 (the discovery of man as fellowman; man as a plurality; and unity). The “ethical self must be engaged in action.” Hermann Cohen, “Affinities” 218. God becomes present in human relationships. Ephraim Meir, Interreligious Theology: Its Value and Mooring in Modern Jewish Philosophy (Jerusalem: Magnes-Hebrew Univ; Berlin, Boston: de Gruyter, 2015) 165–6. Immanuel Kant, Religion within the Limits of Reason Alone, trans & eds Theodore M Greene and Hoyt H Hudson (1793) (New York: Harper Torchbooks, 1960) 6:126. That critique is disputed by DiCenso and Axinn, as seen below.

134 Freedom and Obligation 190 Benedict de Spinoza, Theologico-Political Treatise, ed Jonathan Israel (Cambridge: Cambridge UP, 2007) (1669–1679) 5:58 at 76. Kant adopts Spinoza’s critique of Judaism. Lawrence J Kaplan, “Joseph Soloveitchik and Halakhic Man” in Cambridge Companion to Modern Jewish Philosophy, eds Morgan and Gordon. Yet Kant does not expressly do so; he contrasts his position with Spinoza’s. Immanuel Kant, “What Does it Mean to Orient Oneself in Thinking?” (1786) in Immanuel Kant, Religion and Rational Theology (Cambridge: Cambridge UP, 2001) 8:144*. Kant’s presumed familiarity with Spinoza’s views is recorded in Chapter 1. 191 Menachem Kellner, Must a Jew Believe Anything? (Oxford: Littman Library of Jewish Civilization, 2006) 43. The Hebrew term for word (davar) in classical Hebrew also means deed. Thorleif Boman, Hebrew Thought Compared with Greek (New York: The Norton Library, 1960) 65–6. 192 Ethics of the Fathers 1:2 (R. Simon). 193 BT-Sotah 14a (with particular description of deeds) (R. Hama son of R. Hanina); BTShabbat 133b (Abba Sha’ul); Maimonides, Code: Book of Knowledge 1:6. I extend warm thanks to Elisheva Hochstein for discussion of these passages. 194 Hermann Cohen, Religion of Reason 110 (in man’s “self-sanctification he sanctifies God”). 195 Abraham Joshua Heschel, Between God and Man: An Interpretation of Judaism (New York: Free Press, Simon & Schuster, 1959) 80. 196 Ephraim Elimelech Urbach, The Sages: Their Concepts and Beliefs, trans Israel Abrahams, vol 1 (Jerusalem: Magnes-Hebrew Univ, 1975). 197 Donniel Hartman, Putting God Second: How to Save Religion from Itself (Boston: Beacon, 2016). 198 Jonathan Sacks, Covenant & Conversation: The Sin Offering (Vayikra, 5777) 27 March 2017. Under Kant’s influence it has come to be assumed “that all that matters as far as morality is concerned is the will.” Ibid. A Talmudic passage points to liability as one is considered forewarned whether damage is done accidently or deliberately. BT-Sanhedrin 72a. Liability holds even where one is asleep (BT-Baba Kama 26a). 199 A matter only in the heart is no matter at all. BT-Kiddushin 50a. Violations of biblical commandments such as to love God and one’s neighbor will not be punished. Under Jewish law no offense is criminal unless it is constituted by an overt act; nor can intent give rise to civil liability, if not carried into effect. Haim Cohn ties this position to the freedom of thought. Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984) 126. 200 Ben Zoma taught in Ethics of the Fathers 4.1: Who is strong? One who conquers one’s evil inclination. 201 BT-Nazir 23b (R. Nahman ben Yitzhak). 202 BT-Sukkah 49b (R. Eleazar, referring to Hosea 10:12). 203 James DiCenso, Kant, Religion and Politics (Cambridge: Cambridge UP, 2011) 261–2. DiCenso critiques Kant’s comparison of Judaism with Christianity’s direction towards internal moral disposition, as does Axinn, as seen below. 204 Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State, ed Eliezer Goldman, trans Eliezer Goldman, Yoram Navon, Zvi Jacobson, Gershon Levi, and Raphael Levy (Cambridge, MA: Harvard UP, 1995) 24. 205 Ibid (discussing Isaiah). 206 BT-Baba Metzia 32b. 207 Joice Eisenberg and Ellen Scolnic, The JPS Dictionary of Jewish Words (Philadelphia: Jewish Publication Society, 2001) 79. 208 While the duty to eat unleavened bread (matzah) on the Passover holiday may on some views be fulfilled without kavanah; the blowing of the ram’s horn (shofar) at the New Year does require kavanah. BT-Pesachim 114b (Resh Lakish); Maimonides, Code: Laws of the Shofar 2:4. I am grateful for Ilana Fodiman-Silverman’s instruction on these passages.

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209 For instance, where someone wears prohibited clothing unintentionally the person who has sinned is told of his mistake not in the public market, but only once he has reached his home. Rakover, Human Dignity in Jewish Law 108 (citation omitted), 58–9 (Babylonian and Jerusalem Talmuds on this point). 210 Ibid 158. 211 Jerome I Gellman, “The Denial of Free Will in Hasidic Thought” in Freedom and Moral Responsibility: General and Jewish Perspectives, eds Charles H Manekin and Menachem M Kellner (Bethesda: Univ Maryland, 1997) 111, 113. 212 Compare Plato’s Euthyphro and Republic. 213 Suzanne Last Stone, “Justice, Mercy, and Gender in Rabbinic Thought,” 8 Cardozo Studies in L and Lit 139 (1996) 145. On different meanings of justice and tzedek, see My Justice, Your Justice, ed Yedidia Stern (Israel Democracy Institute, 2010) (Hebrew). Tzedek is also the right thing to do: Tzodek. 214 This similarity may be likened to the semantic relation referred to in Chapter 3 between tzivui, a commandment, and mitzvoth, often taken to indicate good deeds. Just as charity is necessary for justice, good deeds are commanded. 215 On some narrative tales, part of Jewish tradition (midrash), God is of mercy and in battle with severe judgment that is outside God. Last Stone, “Justice, Mercy, and Gender,” 8 Cardozo Studies in L and Lit 139. 216 Maimonides understands the Unity of God to mean that God has no essential attribute in any form. Maimonides, Guide for the Perplexed 1:50. According to Maimonides’ negative theology, God can only be described according to what God is not (for instance, not corporeal). 217 Genesis Rabbah 12:15. Humankind was also created with both attributes, as reflected by Adam 1 and Adam 2: din and rahamim are characterized in human willful assertion and passive receptivity. David Hartman, Heart of Many Rooms: Celebrating the Many Voices within Judaism (Woodstock: Jewish Lights, 1999) 79. 218 BT-Shabbat 133b. 219 Former Supreme Court Justices Menachem Elon, Haim Cohn and Itzhak Englard refer to sources of Jewish law on equity, as seen in Chapter 3. 220 Exodus 35:5: “Take from among you gifts for the Lord, everyone whose heart so stirs him”; Exodus 35:21–35 (wisdom of the heart, a willing heart). 221 Yoram Hazony, The Philosophy of Hebrew Scripture (Cambridge: Cambridge UP, 2012) 171. The relations between people that wisdom (chochma) entails are discussed in Chapter 5. 222 Deut. 6:5 (God); Levit. 19:18 (neighbor), 19:34 (stranger). 223 Joy is commanded, upon bringing the first fruits to the Temple on the holiday of Shavuot (Deut. 26:10–11), on other festivals (Deut. 16:14), and in serving God (Deut. 28:47). See Moshe Sokol, “Maimonides on Joy” in Maimonides and His Heritage, eds Idit Dobbs-Weinstein, Lenn E Goodman and Allen Grady (Albany: SUNY, 2009). A question addressed in traditional sources is whether joy is a matter of choice or obligation (Rashi on Deut. 16:15). 224 Exodus 20:13. Axinn critiques Kant’s conception (Kant, Religion within the Limits 6:126) of Judaism as focusing on external deeds, bringing as an example the Tenth Commandment not to covet (Sidney Axinn, “Kant on Judaism,” 59(1) The Jewish Quarterly Review (1968) 11). DiCenso’s critique of Kant’s critique referenced above is similar. 225 The integration of autonomy and community is put forward in Eugene B Borowitz, “Autonomy and Community” in Autonomy and Judaism, ed Frank 10. 226 Goodman, “The Individual and the Community” in Autonomy and Judaism, ed Frank 80. 227 O’Neill, Autonomy and Trust 83; Onora O’Neill, “Autonomy: The Emperor’s New Clothes,” The Presidential Address, Proceedings of the Aristotelian Society (Supplementary Volume, 2003). See Chapter 6 on O’Neill’s analysis of Kant’s view of

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228 229 230 231 232 233 234 235 236 237 238 239 240 241 242

243 244

245 246

247 248

249

communication as regarding relations in the public sphere. I greatly appreciate the discussion of these issues and of the Kantian concept with Professor O’Neill. My historical and theoretical review responding to O’Neill’s critique is presented in TreigerBar-Am, “In Defence of Autonomy.” This connection is also disputed in Laura Biron, “Public Reason, Communication and Intellectual Property” in New Frontiers in the Philosophy of Intellectual Property, ed Annabelle Lever (Cambridge: Cambridge UP, 2012). Immanuel Kant, Critique of Pure Reason, trans & eds Paul Guyer and Allen W Wood (Cambridge: Cambridge UP, 1998) 465, A534/B562. GMM 4:423. See also Berlin, “Two Concepts” 153 (Kant views the development of mankind’s capacities in accordance with reason as the highest purpose of nature, which can be called a counsel of perfection and can restrict liberty). Taylor, “Kant’s Theory of Freedom” in Conceptions of Liberty, eds Pelczynski and Gray 108. MM 6:429–30. MM 6:238. Kant, “What Does it Mean to Orient Oneself in Thinking?” in Kant, Religion and Rational Theology 8:144. Immanuel Kant, “An Answer to the Question: What is Enlightenment?” (1784) in Practical Philosophy 8:38. Ibid 8:37. Anne Barron, “Kant, Copyright and Communicative Freedom,” 31 Law and Philosophy 1 (2011). Critique of Judgment §51, 5:324. Ibid §46, 5:307–8. See Donald W Crawford, “Kant’s Theory of Creative Imagination” in Essays in Kant’s Aesthetics, eds Ted Cohen and Paul Guyer (Chicago: Univ Chicago, 1982) 172 (for Kant, imagination is the free conformity to laws). Critique of Judgment §59, 5:351–5:352. Ibid §49, 5:318. GWH Hegel, Philosophy of Right, trans TM Knox (Oxford: Oxford UP, 1967) para 4 (the will determines itself), para 106 (in the subjective will freedom can be actualized). See Hugh A Reyburn, The Ethical Theory of Hegel: A Study of the Philosophy of Right (Oxford: Clarendon, 1921) 107–8 (freedom of the will in choice); ZA Pelczynski, “Freedom in Hegel” in Conceptions of Liberty, eds Pelczynski and Gray 151 (“The attribution of true self-determination to spirit Hegel derived from Kant”). Hegel, Philosophy of Right para 7 (the will is the self-direction of the I); Dudley Knowles, Hegel and the Philosophy of Right (London: Routledge, 2002) 29; ZA Pelczynski, “Freedom in Hegel” in Conceptions of Liberty, eds Pelczynski and Gray 178. Charles Taylor, Hegel and Modern Society (Cambridge: Cambridge UP, 1979) 11–12, 76–7 (expression a necessary element), 7 (synthesizing). Hegel’s conception builds on the expressivist theory, formulated in the work of Herder, whereupon the highest human fulfillment is in expressive activity. Ibid 16. Ibid 12. WH Burford, The German Tradition of Self-Cultivation (Cambridge: Cambridge UP 1975) 75. The notion of self-development was “most fully elaborated among the early German Romantics.” Steven Lukes, Individualism (Oxford: Basil Blackwell, 1973) 67. Taylor, Sources of the Self 375. Monroe C Beardsley, Aesthetics from Classical Greece to the Present: A Short History (New York: Macmillan, 1966; Tuscaloosa: Univ Alabama, 1966) 245–8, referring to William Wordsworth and Victor Hugo. See also George Dickie, Art and the Aesthetic: An Institutional Analysis (Ithaca and London: Cornell UP, 1974) 19–21. Hegel, Aesthetics 89.

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250 Paul Edward Geller, “Must Copyright be Forever Caught between Marketplace and Authorship Norms?” in Of Authors and Origins, eds Brad Sherman and Alain Strowel (Oxford: Clarendon, 1994) 168. 251 John Stuart Mill, On Liberty (London: Longman, Roberts & Green, 1869) 120–1; ibid 126, 129–30, 189. 252 Taylor, Hegel 70, 137. See also Lukes, Individualism 70; Berlin, “John Stuart Mill” in Berlin, Four Essays 199 n214. 253 Lawrence M Friedman, The Republic of Choice: Law, Authority and Culture 35 (Cambridge, MA: Harvard UP, 1990); Taylor, Sources of the Self 368; John Christman, “Constructing the Inner Citadel: Recent Work on the Concept of Autonomy,” 99(1) Ethics 109 (1988) 115. 254 Berlin, “Two Concepts” 134. Berlin says that the freedom to choose is “an inalienable ingredient in what makes human beings human.” Berlin, “Introduction” in Four Essays lx. 255 Rotenstreich, Man and His Dignity 65. 256 Jules L Coleman and Jeffrie G Murphy, The Philosophy of Law: An Introduction to Jurisprudence (Boulder: Westview, 1984) 93. Views of autonomy held by Richards, “Rights and Autonomy” 206, 252–3 and Lukes, Individualism 52, 127–8, 131, 135 consist of both rational reflection and expression. 257 HC Frankfurt, “Freedom of the Will and the Concept of a Person” in The Inner Citadel, ed Christman; Rawls, Theory of Justice; John Rawls, “Kantian Constructivism in Moral Theory,” 77 J Phil 515 (1980). These views nonetheless evidence other departures from Kant. Onora O’Neill, Bounds of Justice (Cambridge: Cambridge UP, 2000) 32–6 (calling these views empiricist). 258 Damasio, Descartes’ Error. 259 Friedman, The Republic of Choice 35. 260 Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986) 204 (authoring one’s life); Rawls, Theory of Justice 563 (the original position allows each to fashion his own unity). 261 Richards, “Rights and Autonomy” 206; TM Scanlon, “Rights, Goals, and Fairness” in Theories of Rights, ed Jeremy Waldron (Oxford: OUP, 1984) 141. 262 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1982) 192; ibid 261 (the conducting of one’s life, constituting oneself). 263 Taylor, Ethics of Authenticity 15, 28–9. 264 Brink, Perfectionism and the Common Good 88. 265 Will Kymlicka, “Liberal Individualism and Liberal Neutrality,” 99(4) Ethics 883 (1989) 897–8. 266 Lord Steyn in R v Home Secretary of State for the Home Department, ex p Simms [1999] 3 WLR 328, 337; Eric Barendt, Freedom of Speech (Oxford: Oxford UP, 2001) 13–14 (self-development and fulfillment). 267 Thomas I Emerson, The System of Freedom of Expression (New York: Vintage Books, 1970) 6–7 (self-realization). 268 Glendon, Rights Talk 71; ibid 62. 269 Frederick Schauer, Free Speech: A Philosophical Inquiry (Cambridge: Cambridge UP, 1982) 48–50. 270 319 US 624 (1943). 271 274 US 357 (1927) (Justice Brandeis, concurring). 272 The three main rationales of autonomy, democracy, and truth (see Barendt, Freedom of Speech; Schauer, Free Speech) are discussed in Chapter 6. 273 RH Fallon Jr, “Two Senses of Autonomy,” 46 Stan L Rev 875 (1994) 884. 274 Dworkin, Freedom’s Law 200. 275 C Edwin Baker, Human Liberty and Freedom of Speech (New York: Oxford UP, 1989) 52. Baker also writes of the use of speech to develop oneself, which resonates with consequentialist arguments. Ibid 59.

138 Freedom and Obligation 276 Schauer, Free Speech 65; Frederick Schauer, “Speaking of Dignity” in The Constitution of Rights, eds Meyer and Parent 189. Schauer, with Scanlon, also takes the freedom of expression as a line of demarcation separating the individual and government, Schauer, Free Speech 71. 277 Christina E Wells, “Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court’s First Amendment Jurisprudence,” 32 Harv Civ Rights-Civ Liberties L Rev 159 (1997). Wells however analyses Kantian political theory, rather than relying on his moral theory, as is done here. Kant is specifically called upon in David Richards’ claim that the protection of autonomy implied in the freedom of expression is the protection of the capacity for moral choice. Richards, “Rights and Autonomy” 252–3. 278 Cohen v California, 403 US 15 (1971) 24. 279 Emerson, The System of Freedom of Expression 6–7. 280 Louis Henkin, “Human Dignity and Constitutional Rights” in The Constitution of Rights, eds Meyer and Parent 223. 281 Coleman and Murphy, The Philosophy of Law 86–101. 282 Thomas Scanlon, “A Theory of Freedom of Expression,” 1 Philosophy and Public Affairs 204 (1972). See also Steven J Heyman, Free Speech and Human Dignity (New Haven: Yale UP, 2003) 38–9. 283 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard UP, 1978) 272–8. 284 Ibid 198–9. 285 HCJ 73/53 Kol Ha’am v Minister of the Interior, IsrSC PD (7) 871 (1953); Barak, Human Dignity and citations therein. 286 Novak, Covenantal Rights 79. 287 Jonathan Sacks, Genesis: The Book of Beginnings (Covenant and Conversation) (Jerusalem: Koren, 2009) 25. 288 Joseph B Soloveitchik, Halakhic Man (Philadelphia: Jewish Publication Society, 1983) 71, 81, as seen in Chapter 3. 289 I thank Rabbi Elisha Wolfin for his insightful teaching of Numbers 20:8. The Bible also indicates the place of speech in returning to purity (Hosea 14:3; Etz Hayim: Torah and Commentary, eds David L Leiber et al (New York: Rabbinical AssemblyJewish Publication Society, 1985, 2001) 1235–6). 290 Avivah Gottlieb Zornberg, Genesis: The Beginning of Desire (Philadelphia: Schocken, 1995) 49–50. 291 Levit. Rabbah 1:6. 292 Hazony, Philosophy of Hebrew Scripture 104, 138–9. See also Haim Cohn, Human Rights in the Bible and Talmud, trans Shmuel Himelstein (Tel Aviv: Modern Books, 1989) 90ff (free speech of biblical prophets and on); David Hartman, A Living Covenant: The Innovative Spirit in Traditional Judaism (New York: Free Press, 1985) 55 (on Elijah). 293 Amnon Shapira, “Free Thought, Speech, and Criticism in the Bible” in Between Authority and Autonomy in Israel’s Tradition, eds Ze’ev Safrai and Avi Sagi (Tel Aviv: United Kibbutz, 1997) (Hebrew) 443–7. 294 Ze’ev W Falk, “Can Judaism Incorporate Human Rights, Democracy, and Personal Autonomy?” in On Liberty, ed Frank 114. Falk notes that God invited Abraham to argue on Sodom, and that the Bible recounts Isaac walking and talking in the field, presumably in prayer. 295 Haim Cohn, Human Rights in Jewish Law 116. Haim Cohn notes the exception of the doctrine of the rebellious elder, as seen in Chapter 3. 296 Haim Cohn, Human Rights in the Bible and Talmud 72. A duty to speak out affirmatively may arise for instance against hate speech. 297 Taylor, Sources of the Self 35. 298 MM 6:289.

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299 The Philosophy of Law (W Hastie trans, 1887) (a translation of The Metaphysics of Morals) 131. 300 Critique of Judgment (emphasis in original) §60, 5:355. 301 Ibid (emphasis in original) §41, 5:297. 302 Ibid §29, 5:275. 303 Brink, Perfectionism and the Common Good 91. 304 Baker, Human Liberty and Freedom of Speech 48–50 (expression), 53 (selffulfillment). 305 Haim Cohn, Human Rights in the Bible and Talmud 69. See Numbers 12:1, 10 (Miriam speaks against Moses); Levit. 19:16 (against spreading slander). 306 On Rashi’s interpretation, the provision prohibits mockery or giving unfair advice. Truth (emet) as trustworthiness is seen in Chapter 6. 307 Yeshayahu Leibowitz, Discussions on Pirkei Avot (Jerusalem: Schocken, 1979) 91. 308 BT-Baba Kama 86a-b (debate as to the method of valuation). 309 Etz Hayim on Levit. 24:10–16. 310 BT-Arachin 15b (R. Jose ben Zimra). 311 Israel Meir Kagan (“Chofetz Chaim”), Desirer of Life (1873). 312 Buber, I and Thou; Martin Buber, Between Man and Man, trans Ronald Gregor Smith (London: Routledge, 2002) (1947). 313 Edith Wyschogrod, Emmanuel Levinas: The Problem of Ethical Metaphysics (New York: Fordham UP, 2000) 128, 152. 314 Martin Buber, At the Turning (New York: Farrar, Straus and Young, 1952) 48: 315 O’Neill, Autonomy and Trust 185 (contrasting communication that is between individuals and hence entails obligations, with “mere self-expression”).

Part II

Positive Freedom in Expression

Introduction

Discussion in Part II of the book moves from moral theory to law. The ramifications of the theory of positive freedom that were developed in Part I of the book, are now investigated regarding law. Duty to the law has been seen as central to both Kant and Judaism.1 Kant begins his doctrine of right indicating obligation, similar to the categorical imperative regarding freedom.2 The aim of this study is not to infuse Kantian theory and Jewish thought into law and civil society, but rather to allow lessons gleaned from them to illuminate current understandings. Rights and duties in law may be seen in the same intrinsic relation to each other as the freedom and obligations that they affirm. What impact on legal discourse and civil society may be anticipated from the reconceptualization of rights as duties of respect? The effects on the law and culture regarding expression are in view. Rights and duties of respect for the speaker and speech are proposed. Freedom and obligation are inextricably tied. It has been seen that Kantian autonomy is obligation: autonomy is the capacity for self-legislation of the moral law and hence the obligation to it. In Jewish thought freedom is deemed to precede obligation, and also to arise from it. Rights too may be conceptualized as tied at their essence to duties of respect. While modern culture often takes right as about the self and duty as about the other, right and duty come together, as do self and other. Relations of respect, attachments, and the common good follow. Rights have long been viewed as limited by correlative duties to respect the rights of the other party. Yet when viewed as intrinsic to rights, duties are to be seen not as external limitations on what would otherwise be an absolute view of rights. The duty of respect is a constitutive part of a right. The right to be let alone is constituted and indeed magnified by the duty of respect that is intrinsic to it. This Introduction to Part II briefly explores where the instant argument stands with respect to a) the law and morality debate, and b) the potential effects on civil society of the foregoing moral analysis. The discussion of law engages c) the rhetoric of rights in legal discourse, and d) the relation between right and duty in law in terms of reciprocity and horizontality, as well as the duty to society. e) The relation of right and duty in legal conflicts involving expression is then addressed.

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A. Law and Morality Law and morality are closely intertwined. Kant’s conception of autonomy regards the legislation of universal moral law. Principles of justice and fairness are prevalent in Biblical and prophetic legal norms and doctrines. Jewish law embraces the notion of the law aiming to achieve a more perfected society; despite its formalism, halacha embraces equity.3 Ethical principles of justice and fairness are part of the modern Israeli legal tradition.4 In the modern age, analysis of the interaction between law and morality continues. They are seen to function in a symbiotic relationship. Moral judgments affect the law, and also in the reverse, “law influences the way people think about responsibility in the moral domain.”5 Many thinkers have developed the idea of law reflecting society’s moral aims. Ronald Dworkin understands law to guide us towards morality.6 Dworkin’s view is that we must try our best to make our country’s law what our sense of justice would approve.7 The modern view adopting this goal for law is perhaps a throwback to the stance from classical Greece, which takes law as leading society to where it should go.8 In contrast with what Dworkin terms political morality,9 the approach presented by Patrick Devlin known as popular morality expects the law to embrace the views of the majority as to morality.10 While HLA Hart’s contrasting conception of critical morality opposes the law’s adoption of moral strictures, it too appears to adopt a moral view. On Hart’s view, following JS Mill, laws are to be evaluated by their upholding of liberty.11 This attention to liberty itself may be taken as a principle of morality, as seen in Chapter 2. The approach proposed here embraces the notion of law as a moral structure, intended to further moral principles. Positive freedom can advance such principles, and illuminate ethical guidelines. Isaiah Berlin warns of state coercion of morality ensuing from the concept of positive freedom. Yet that threat recedes where negative and positive freedom are affirmed alongside each other. Liberty, as the negative right of non-interference, is set forth in company with positive freedom requiring the respect of others.12 Ethical duties of respect for the dignity of others is central to law as understood in democratic liberalism. Dignity and respect are present around the globe in legal structures. Even in the US, where the duty of respect for dignity does not appear expressly in the Constitution, it is a strong element in law.13 Because it is an underlying principle of society, in Dworkinian terms it should be used by judges in interpreting hard cases of law. The duty of respect is indeed a value that may be used as an interpretive tool in the law, requiring for instance consideration in decision-making, as taken up below. What the moral duty of respect entails regarding legal conflicts involving expression is explored in Part II. Under examination are laws of copyright and legal determinations regarding women’s prayer in Jerusalem. In these areas, both rights and duties are in view: the protection of freedom and upholding of duties of respect. Respectful behavior is indeed needed in the areas explored. Consideration of the rights of others, both authors and worshippers, is to be affirmative. Also, in both spheres, a pluralism of voices is to be allowed.

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A word as to terminology regarding law and morality is in order. In Part II’s move from moral theory to law, the subject of inquiry is an ethical code of behavior regarding communication. Again, here it is to be recalled that, as stated in the Introduction and demonstrated throughout Part I, the term “moral” is used to indicate rules and principles, and “ethical” to refer to conduct between people, upon the obligations arising from one’s freedom. At issue in Part II are the legal requirements following ethical guidelines governing behavior in society.

B. Effect on Civil Society An understanding of freedom as entailing duties of respect may impact society. Is it practical to aim for the view of moral law in Kantian and Jewish thought to have any effect on civil society? Are Kantian and Jewish thought relevant? I take the position that they are, and put forward that the effects from both may be widely felt. It can be claimed that Kantian metaphysics is too far a reach, and it is not realistic to presume that people will function according to reason, as Kant presumes. Yet Kantian views have had a strong impact on the modern concept of autonomy. As Richard Fallon has argued, whether or not it is “true,” we live our lives on the basis of the Kantian concept of free will.14 Also, in Jewish tradition the moral law is not to be deemed inaccessible. The Bible portrays God instructing that it is not to be presumed so: the phrase lo bashamayim hee was used to indicate that God’s law is not far in the distance (Deut. 30:12). Like Kantian theory, so too Jewish tradition and thought have grounded the concepts of freedom, justice and equality in Western democratic liberalism, as discussed earlier. Arguments have been made that principles regarding obligation from Kantian and Jewish thought cannot find applicability to modern day civil society. Regarding Kant and obligation, JL Mackie writes critically that “if we see morality as a human product we cannot intelligibly take duties as its starting-point. Despite Kant, giving laws to oneself is not in itself a rational procedure.”15 It is said that the sense of obligation in Jewish law cannot be extended to civil society without a religious sense of an authoritative figure to demand obligation. Suzanne Last Stone writes: “Educating people into the paideia of obligation is not sufficient to correlate the law and the community. Rather, it is the idea of walking with God that causes the correlation.”16 Yet even where reason or divine order is not considered sufficient, moral principles may take effect.17 Changes in society reflect these theoretical structures, and the structures of thought may be used to clarify such changes. Hence Kantian and Jewish ideas of obligation at the heart of freedom can produce effects in both theory and practice. I do not argue that a Judaic understanding of God must be adopted. Nor do I call for Kant’s concept of autonomy to be taken on comprehensively; the development of the concept of autonomy from reason to expression has been reviewed.

146 Positive Freedom in Expression Yet the effects of these two theoretical groundings of freedom as the duty to respect can be embraced, in culture and in law. Even before considering the legal effects, a view is taken of the effects that may be felt in civil society. A greater correlation between law and contemporary moral convictions and a shift in emphasis on duty can have broad effect, on “a wide range of human activities and relationships.”18 Effects may result from the conceptions of the self as not atomistic but attached, and the duties towards others as a common good. Those elements with regard to expression are explored throughout Part II. 1) Attached Individual Where freedom is understood as obligation and rights as duties of respect, the self is considered to be attached and in relation. Critics paint modern liberalism as supporting a notion of the self as disconnected from humankind’s social nature and sense of belonging to a family and communal unit, as seen above. Charles Taylor writes of the resultant deflating of the meaning of our lives: “[T]he dark side of individualism is a centering on the self, which both narrows and flattens our lives, makes them poorer in meaning, and less concerned with others or society.”19 Michael Sandel argues that existential freedom erases identities.20 That can be corrected. Rather than flattening meaning, the presumed weight of obligation and attachments can add meaning. The atomistic conception of the individual can be refuted in favor of understanding human beings as in a relation of duties to others, which both Kantian and Jewish thought afford. For Kant, the individual obeys the categorical imperative, according to which they consider others in determining the universal norm. Onora O’Neill writes of the centrality of “relationships between obligation bearers and right holders.”21 The view of Kantian autonomy as an ethic of care has been put forward. In Jewish tradition, the individual is a member of a community. “The individual has not been isolated radically from a larger social body which extends across the bounds of personal atomicity not only over space but over time.”22 Hillel in Talmudic times famously stated: “If I am not for myself, who will be? But if I am only for myself, what am I?” (Ethics of the Fathers 1:14). The first statement shows individual responsibility, while the latter shows collective responsibility. Daniel Frank has noted that the modern era brought a bifurcation of private and public, of individual and community, and that Jewish nationalism has been Judaism’s response.23 Israel as an example of a nation-state with norms affirming both individual and community is discussed in Chapter 6. Social bonds and attachments lend meaning. Berlin acknowledges that “my ideas about myself, in particular my sense of my own moral and social identity, are intelligible only in terms of the social network.”24 Berlin suggests that beyond the negative liberty of non-interference, the human “desire for recognition is a desire for … union, closer understanding, integration of interests, a life of common dependence and common sacrifice.”25

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Duties to others, which gave way in the modern period as rights came on the rise, also lend meaning. Joseph Raz affirms: By assuming duties we create attachments [, … which] are the key to a meaningful life.”26 Values such as solidarity and social responsibility can have this effect on our cultural ethos.27 2) Common Good Where both individual and community are recognized, a common good comes to the fore. The vision of a common good – or rather efforts to define and achieve one – arises from the notion of a duty of respect as the heart of freedom. Upon a conception in society of a common good, a shared moral discourse and behavior would be possible in place of the fractured moral discourse embodied in extreme versions of individualism. The common good at issue is not the utilitarian one, looking to what is beneficial to everyone, nor the aggregation of the personal good of distinct individuals. The good need not be privatized. Nor is it a common good in the sense of a facility that will be advantageous to many. Rather than an instrumental view, common good is used here to indicate the values shared in society.28 A common good alongside individual rights has been envisioned by theorists of liberalism in the past. TH Green and the New Liberals of the 19th century put forward the idea that the individual good is constituted in part by the good of others, namely the common good.29 The liberal perfectionism described above – as refuting the threat of which Berlin warns – may respond to this quandary as well: the individual’s negative liberty is protected along with an aim towards a perfectionist good, which may be conceived as a societal goal. The common good is defined by individuals and groups, as Will Kymlicka has shown is possible, rather than by the state.30 The good that is common to the society is here portrayed as the duty of respect for the freedom and dignity of the other. The conception put forward encompasses both individual rights and the common good – both negative and positive liberty. The right and the good, as well as liberalism and perfectionism, function together. Kantian theory affirms both side by side: both the individual’s autonomy in consideration of others and the universal moral law, which may be considered a common good. Also central facets of Jewish tradition are both freedom and advancing the common good.31 Related is the view common to Kantian and Jewish thought, as shown in Part I, of the particular and universal side by side. Judaism adds a layer of relations to the common good. Its rich tradition of involving the individual in social relations in the community was addressed in Part I. The Jewish social order gives “equal honour to the individual and the collective, personal responsibility and the common good.”32 An example is the second tithe required under biblical law, which was eaten in festive gatherings and supported communal attachments.33 The covenantal perspective allows individuals “to preserve their own integrities while sharing in a common whole,” as Daniel Elazar notes.34

148 Positive Freedom in Expression Thus an understanding of duties of respect as the essence of rights may affect civil society. Relations of the attached individual to others in society are valued, and the notion of a common good advanced. This conception may also affect legal discourse.

C. Effect on Legal Discourse Before considering the legal view of the correlativity and intrinsic relation of right and duty, the impact of a shift in emphasis from right to duty is put forward. In her critique of “Rights Talk,” Mary Ann Glendon laments the absence of language of responsibility in the modern legal and cultural discourse of rights.35 The individualism that is “the bedrock virtue of modern societies” in Western countries involving “maximizing personal freedom without regard for responsibilities to others becomes an end in itself,” in Francis Fukuyama’s words.36 That the rhetoric of rights needs obligations is also affirmed by O’Neill: Although the rhetoric of rights dominates public life today, I believe that we fail to take rights seriously unless we link rights claims to rigorous thinking about obligations, about action and about the capabilities that agents and institutions need in order to discharge their obligations, and thereby respect one another’s rights.37 Practical effects may take hold. A community duty to educate is an example, as Robert Cover notes. The right to education may be only a slogan, unless the obligation is taken on. In the two thousand-year Jewish tradition where the obligation to educate is borne by a child’s parents as well as by the community, education is widespread.38 Ernest Weinrib shows that the poor benefit from a duty, but not because there is a right.39 In examining Kant’s system of rights, Raz further underscores that not all duties have rights correlative to them.40 A duty-based system may also advance the likelihood of fulfillment of socio-economic rights.41 In the drafting of the Universal Declaration of Human Rights (“UDHR”), the issue of duties along with rights was proposed but opposed, and it has been said that the declaration would have a broader effect if they had been included.42 Article 29 of the UDHR indeed lists duties before rights. To fulfill this perceived gap, the Declaration of Human Duties and Responsibilities was proclaimed in Valencia, Spain, in 1998 and adopted by UNESCO, and duties are prominent in the Declaration on Human Rights Defenders was adopted by the UN General Assembly in 1999.43 A UK Green Paper of 2009 was entitled “Rights and Responsibilities: Developing our Constitutional Framework.”44 In some ways the critique of rights may go too far. Arguably the critique in fact surrounds social ills, rather than legal ones.45 I wish to underscore that my analysis centers on duties in addition to rights, and obligation in addition to freedom. Nor are rights to be deemed only as duties. The correlativity of rights and duties is in addition to their intrinsic relation.

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Both a nomos and a narrative are essential, as Cover puts forward. The nomos is of both the Right and the Good: both deontological rights and the aim of the common good. The narrative affords a rhetoric of rights as well as of duties of respect. While liberal discourse is said to falter due to its over-emphasis on rights, and while the myth of Sinai is taken to concentrate heavily on obligation, a narrative is called for which combines both. Freedom and obligation, rights and duties, individual and community are to be taken as working together, as Kant and Judaism teach.

D. Right and Duty in Law In addition to the effects on civil society and legal discourse, a concentration on duties can affect the law. The correlativity of rights and duties proposed by Wesley Hohfeld a century ago has maintained its force.47 As Hohfeld teaches, X’s right entails Y’s duty to respect that right. Kant also calls the concept of a right the “capacity for putting others under obligation.”48 It is proposed here to consider rights as correlative to and also as intrinsically related to duties. X’s right entails Y’s duty, and also X’s own duty to respect Y. The right of one individual is correlative to the duty of another to respect that right, but also the duty of the latter to respect the former arises from the latter’s own freedom. Comparable to the concept of freedom incorporating obligation, so too the concept of right encompasses duty: the intrinsic nature of the relation between them is proffered. This intrinsic relation is not instead of Hohfeldian correlativity, but as a supplement to it. The two relations are not contradictory; Hohfeldian and Kantian analyses of rights and duties exist alongside each other. Nor does acknowledgment of the intrinsic relation require taking duties as prior to rights.49 Yet further to the positive conception of freedom as obligation, right is correlative to duty and also intrinsically entails duty. Therefore, the duty of one to respect another’s right is not a limit to the former’s right, but is intrinsic to it. A right is not limited by an external identity, but is constituted by the duty. The following discussion reviews duties alongside rights in legal theory, as well as in Kantian theory and Jewish thought. The bilateral, multilateral and even universal nature of duties is then considered. 1) Recognizing Duties Alongside Rights In the contexts of natural rights, classical liberalism, and civil rights, many legal thinkers have highlighted the importance of duty and responsibility. John Finnis highlights the notion of what is due, for justice.50 Jonathan Crowe deems simultaneous freedom and responsibility an “unacknowledged premise of classical liberal arguments.”51 Referring to Sartre’s Being and Nothingness, Crowe recalls the notion that choice brings responsibility for its consequences, even upon the concept of existential freedom.52 Jeremy Waldron analyzes some rights as being

150 Positive Freedom in Expression duties, or indicating responsibility, such as the right to care for one’s children, the right to vote, and the inalienable right of self-defense.53 Even Berlin, who takes rights and negative liberty as paramount, has been shown to recognize humankind’s desire for sacrifice and hence duty, and acknowledges positive liberty as well. Berlin’s underscoring of the yearning for freedom is supplemented by his recognition of humankind’s desire for a common sacrifice to the other. There is an argument that a change of emphasis in law is only semantic, as in any event rights and duties are correlative to each other: if X has a right, then Y has a duty not to interfere with that right. Any discussion of rights is at the same time said to be a discussion of duties, and vice versa. Yet the emphasis in discourse on right or duty has an impact.54 Daniel Statman considers whether politicaleducational processes will be able to supplement the discourse on individual rights with duties.55 It is put forward that a change in rhetoric may impact discourse in law and culture in a number of significant ways. 2) Kant and Jewish Thought Obligation as the essence of freedom in Kantian theory and Jewish thought was the subject of Part I; here, duty is identified as the essence of right. Rights are justified in Kant’s doctrine of right. Rights are presented in Judaism in post-biblical rabbinic literature, indicating what is owed or due to someone.56 Yet in focus here is the centrality of duties in both structures of thought. Kant’s definition of right shows the relation of right and duty. For Kant, a right is the reciprocal coercive consciousness of obligation in accordance with the law.57 The will theory of rights is associated with Kant and the conception of autonomy.58 Yet the Kantian theory of rights is not developed here; rather, the implications for law of the Kantian concept of autonomy conceived as obligation are explored. Waldron writes that Kant’s moral theory is the “most notable example of a duty-based theory,” even while “many philosophers have used [it] as the basis for theories of rights.”59 So too Dworkin underscores Kant’s duty-based morality.60 Also Jewish thought is examined for the effects on law of the concepts of freedom and obligation, rather than Jewish law. Individual freedom and rights have been affirmed in Jewish tradition, and are prevalent in modern Jewish sources as well. “[T]he Jewish tradition is zealous in protecting the just rights of one individual, against the unjust power of another,” as David Novak underscores.61 In modern times the rights of the individual in Jewish tradition have been strengthened.62 Rights appear not in the Bible but later under halacha, developed in Talmudic times and thereafter, and based on duties. Judaism’s strict adherence to the duty not to murder, for instance, upholds the right to life. The obligation not to steal in the Bible supports the right to property; from the duty not to spill blood arises the right to life; and the prohibition on harming gives rise to rights to damages.63 In some rabbinic sources dealing with private law issues the word “right” in the

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meaning of “claim-right” is used. Human rights, however, are always phrased in Jewish sources in terms of duty.64 Duties are the forefront of Jewish legal obligations. Haim Cohn reasons: “It is no accident that the whole of the law concentrates on duties and has a scanty regard for rights: it is the performance of duties by which God is served.”65 The precedence seen earlier in Jewish law of positive commandments over negative ones signifies that what people have a duty to do is more significant than what people have a duty to refrain from doing. While rights-based law is concerned with what people should refrain from doing rather than with what they ought to do, duty-based law has been said to infuse peoples’ lives with a positive normative meaning.66 In the realm of justice, philosopher Emmanuel Levinas has said that one’s duties exceed one’s rights.67 With the conceptualization of rights as duties, their affirmative and relational aspect is restored. The Kantian categorical imperative requires the consideration of others, and Kantian theory as well as the Jewish notion of gemilut hasadim demand behavior that takes account of others. 3) Horizontal and Reciprocal The individual envisioned in the conception of positive freedom put forward is attached to and in relations with community and society. Those relations involve rights that are horizontal and reciprocal. Rights are at their essence duties of respect; hence horizontal rights intrinsically entail duties of respect. Those rights, and hence duties, are widespread. Public law and values were in the past presumed to give rise only to rights on a vertical plane. Civil rights were traditionally enforceable only against the state. For example, one’s right to expression was considered a public right in effect against the state, which may not unjustifiably limit the right. More and more, public rights have come to be taken as applicable horizontally as well. One’s right to expression is upheld against the state but also against interference by another individual, because it is a private agent’s duty to respect expression.68 Also public law values – such as respect – are entering the private law.69 Israeli law too has recognized horizontal application of rights between private individuals.70 The relationships tailored between people in community in the Jewish tradition are horizontal. Even in vertical relations with God, horizontal elements come forward. While the Written Law is vertical, the Oral Law in Jewish tradition reflects horizontality.71 The source of the communal authority of a rabbi is socialized through participation in study with others.72 Even the biblical narrative telling of the paradigm of vertical authority with the commandment to Abraham to sacrifice his son Isaac was relayed with elements regarding horizontal relations, as put forward in Chapter 3. Horizontal rights are reciprocal. The responsibility to extend mutual aid was discussed in Chapter 4. In Stephen Darwall’s words, bipolar obligations entail mutual accountability.73 Weinrib examines the bipolar nature of rights and duties

152 Positive Freedom in Expression in private law in a legal analysis infused with Kantian theory.74 Also vertical rights entail reciprocity: Jewish thought even embraces a notion of reciprocity in the vertical covenantal relationship of the people with God: ruler and ruled each bear duties to one another. Rights are not absolute, but limited. That limit is set by the duty to respect the rights of the other party. Rights are also limited by the obligations inherent in their very essence. The duty of X is correlative to the right of Y, but also intrinsic to X’s right. The duty to respect is inherent in the right. Hence rights are not limited by an external factor: rights themselves are constituted by duties. Intrinsic to them are duties of respect. Reciprocal rights and duties call for a balance between them. Jürgen Habermas affirms the increasing recognition of horizontality, and the need for balancing basic rights: The more deeply civil rights suffuse the legal system as a whole, the more often their influence extends beyond the vertical relation between individual citizens and the state and permeates the horizontal relations among individuals and groups. The result is an increase in the frequency of collisions that call for a balancing of competing claims founded upon basic rights.75 Is balance too vague? Balancing has met with resistance. Waldron notes that recalling autonomy on both sides of a conflict may lead to an impasse.76 Some US constitutional law scholars frown upon the concept of balancing, preferring brightline rules.77 Yet balancing is not to be avoided; it is what courts do. While individual rights are trumps over social goals, Dworkin calls for balancing where rights are in conflict.78 Fundamental values conflict. “The hallmark of democracy is the wealth of rights, values and principles and the ongoing conflicts between them.”79 These conflicts do not indicate a mistake in the constitutional text. Former Israeli Supreme Court Chief Justice Aharon Barak’s response to a conflict in values at the constitutional level is: “Let a thousand flowers bloom.”80 Autonomy and dignity may well be at issue for both sides to a conflict. In Waldron’s view this is true of dignity, liberty and almost every major value. Instead of being a criticism, he calls it a tribute to dignity that it might be engaged on both sides.81 Duties ought to be acknowledged as applicable on a horizontal plane, calling for respect to be shown between private individuals. Those duties are correlative to the rights held, as well as intrinsic to them. It is submitted that in addition to the balance of horizontal rights, a balance of horizontal duties should be undertaken. 4) Duty to the Common Good Also on the vertical plane, duties of respect are widespread. In addition to the rights possessed by individuals in relation to the society (or community, or state), individuals bear duties of respect. Those duties are intrinsic to the individuals’

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rights. Individuals bear duties on a vertical plane for the common good. The society (or community, or state) has rights as well, based on authority. Intrinsic to those rights and that authority are duties of respect for individuals. Duties that are applicable vertically are held by individuals. Those duties are owed correlatively with regard to rights-holders, namely to other individuals and society. The duties are also intrinsic to the rights held by individuals. In addition to their being reciprocal and hence bilateral, duties can be multilateral, and even universal. Duties are indeed omnilateral, when rights are in rem: they are owed to and by everyone.82 Duties of care are in some jurisdictions said to be owed to all.83 The duty of respect must also be recognized as owed to the society for the common good. The society (or community, or state) bears duties of respect. Those duties can be characterized as correlative but also intrinsic, and are duties to respect individuals but also the common good. While duties on a vertical plane are duties of non-interference, positive duties are also held by the state. In some instances, such duties are positive duties of the state to protect citizens from infringement of their negative rights. State enforcement and judicial recognition of rights is due. Examples of positive duties are multiple. The Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights 1997 point to “obligations to respect, protect and fulfill” rights civil and political, and also economic, social and cultural. Israel’s Basic Law of Dignity imposes on the state a positive duty with its provision that all “are entitled to protection of their life, body, and dignity.”84 Moreover, positive vertical duties are in place where the state is obligated to uphold positive rights including education, and socio-economic conditions.85 These so-called positive rights impose positive duties upon the state. Positive duties of respect may also be set forth where the law poses standards requiring the provision of opportunities, as Raz argues.86 A positive duty is the duty of assistance that is imposed in many jurisdictions.87 Known as the law of the Good Samaritan,88 such laws are based on Leviticus 19:16 (thou shalt not stand idly by the blood of thy neighbor). Positive intervention by the state may be appropriate, for example, as Owen Fiss has shown, in situations of limited access to forums of speech.89 The provision of platforms for speech may be appropriate for authors and for worshippers. Those possibilities are addressed in this light, later in this study. Such duties are correlative to the rights of individuals, and also intrinsic to the rights or authority held by individuals as well as by the society (or community, or state). The duty of respect is owed by holders of authority to individuals subject to that authority. Just as human rights are taken as universal, as for example in the UDHR, so too duties may be considered universally applicable.90 The Declaration of Human Duties and Responsibilities of 1998 is an example. 5) Legal Rules and Values Legal standards and court determinations ought to reflect duties of respect. The law may uphold duties of respect in values. Standards of care come forward. In

154 Positive Freedom in Expression law, affirmative respect can require the showing of concern, for instance with respect for the dignity of the other imbued in requirements of considerate action and decision-making. These positive duties can be taken as values, even if not strictly set out as rules. a. Care The notion of care in Kantian ethics may be extended to the law. The characterization of Kantian autonomy as an ethic of care has been presented, insofar as autonomy demands duties of respect for others: the categorical imperative requires one to treat another as an end rather than as a means to an end. Dawn Oliver makes the link from Kant to the law, and writes: “The respect in which a person is held by others affects that person’s relations with others. It involves equal treatment and non-discrimination.”91 Duties of care establish duties to be careful, as Nicholas McBride argues, rather than only requiring that damages are paid upon their breach.92 With duties of care, considerate action is imposed on private bodies. The law of negligence takes up the duty to respect the dignity of the other with standards and rules, regarding for instance product liability as well as “wider duties of care towards ‘neighbours’ across a wide range of ‘private’ activity.”93 Duty and responsibility lie at the center of private law and the normative structure of the relationships in our private lives.94 Duties are positive, upon a conception of positive freedom. Rather than the negative duty of non-interference, arising upon the view of negative liberty as noninterference, the duty of respect is to be affirmative. Duties of affirmative respect for dignity in the Kantian and Jewish tradition of positive freedom were shown to require intent and behavior as well as a show of concern or consideration, as is here in view. b. Concern Scholars and courts have put forward the need for consideration of others, and consideration in decision-making. In Oliver’s words: private law can, and should, impose standards not only of considerate action but of considerate decision making, of, broadly, legality, fairness and rationality [footnote omitted] on the actions and decision making of … private bodies. … Our argument here will be that it is entirely appropriate for private parties in positions of power to be under legally enforceable duties of consideration in many (but not all) of their activities.95 Considerate decision-making is one of the effects that the values of dignity and respect have on the law. Alon Harel points to consideration when he argues that dignity governs how we ought to deliberate. When dignity is at stake, the interests of others ought to be taken into consideration.96 An ethic of care in law requires consideration, good faith, and reasonableness.97 The nature of the legal process is

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paramount. Looking to consideration as a moral requirement, John Tasioulas argues that one must acknowledge others’ dignity for action to be moral.99 While the determination of when positive duties are to be fulfilled by the state and what they require are constitutional law decisions, here in focus is how legal determinations are made. The importance of consideration in decision-making is apparent in legal conflicts regarding expression. Copyright owners are required by law in the US to consider whether a user of the owner’s material is making fair use of it, as reviewed in Chapter 5. In other jurisdictions, standards in copyright law of reasonableness, fairness and good faith are in accord. Decision-making by the authorities controlling expression and prayer must also adopt the practice of consideration of others, as put forth in Chapter 6. c. Values Dignity need not be a strict legal rule, but may rather be recognized as a fundamental value underlying the law. As a value, the duty to respect the dignity of the other grounds rights, rules, and standards in law. That value underlies rights of all parties, such that a balance of rights and duties to the parties in a legal conflict must be undertaken. Respect for dignity is a value that may be used by judges interpreting the law. Barak underscores the importance of dignity as a constitutional value, rather than an absolute right, which may be too narrow.100 Dworkin and Oliver take dignity and respect as a value rather than a strict law.101 The duty of respect is to be adopted in culture, as well. The influence works in both directions: notions of responsibility in law affect culture, and the social reality of responsible relations in culture affects the law. Jeremy Watkins refers to social practices and attitudes in society that affect and are affected by responsibilityascriptions in the law.102 Harel argues that rights affect values: the political and legal entrenchment of rights helps to construct a common culture.103 I put forward here that the entrenchment of duties of respect can have an effect on culture. Embracing a notion of duties of respect as a common good may affect civil society, as discussed earlier. Hence the effects of a duty to respect will come forward in law. Standards requiring care, and considerate decision-making of responsible actors, are to be strengthened. The rights and duties of respect of each party to a conflict are to be balanced. These legal methods in practice are explored throughout Part II, regarding disputes involving expression in private and public law.

E. Expression Further to the close association between rights and duties that has been shown, I suggest here that the law of expression deem duties as both correlative and intrinsic to rights. Upon the conception of positive freedom, freedom is in its essence obligation, as shown in Part I. So too, freedom of expression is in its essence the duty of respect.

156 Positive Freedom in Expression Part II of the book looks to the ramifications of the analysis of Part I on legal rights and duties of expression, both for liberalism and Israel as the Jewish and democratic state. A fresh perspective on free speech is due – and one that has ageold roots. Rights and duties of expression are viewed in light of the Kantian and Jewish conceptualization of freedom as the duty of respect and the ethics of communication. The value of respect is applied horizontally and vertically to relations among people, and between them and the state. 1) ECHR – Rights and Duties in Expression The European Convention on Human Rights and Fundamental Freedoms (ECHR) recognizes that responsible exercise of rights entails responsibilities. The ECHR provides as follows, in Article 10 – Freedom of expression: 1

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Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

I applaud the ECHR formulation regarding rights as carrying duties and responsibilities. Also to be noted is the phrase in the 2009 UK Green Paper of “responsibilities inherent in our rights.”104 While the ECHR formulation is known as a limitations clause, duties can be perceived not only as limiting rights, but defining them. Duties to respect the rights of others is not only a limit of one’s right of speech because of a duty correlative to the other, but also a duty arising from one’s own right. Limitation on the expression of some in order to safeguard others was reflected in a US case regarding the burning of a cross. Because of the fear of assault that cross-burning engenders, the US Supreme Court upheld in principle a statutory ban from the State of Virginia on cross-burning, in Virginia v Black. 105 Israel’s Basic Law of Dignity, which has been interpreted to protect expression, has a limitations clause, calling for proportionality (Article 8). The consideration of others comes to the fore. The freedom of expression entails the duty to respect the rights of others. A sense of horizontality and reciprocal recognition, as examined above, and as apparent in Habermas’ call for

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discourse ethics, is apparent in law. Included in the duties and responsibilities listed in ECHR Article 10(2) are the rights of others. Balance will be necessary. A balance of the rights and duties of the parties to a legal conflict involving expression is envisioned under the ECHR, and also in US and UK law. In the US, commentators recognize that First Amendment case law involves balancing as well rules.107 The First Amendment category approach involves “definitional balancing,” where categories such as child pornography, obscenity and fighting words are excepted from free speech protection.108 An example of the UK House of Lords balancing rights of expression and privacy is Campbell v MGN. 109 A further example regarding limitations and balancing is situations involving hate speech. 2) An Example: Hate Speech Conflicts involving hate speech are the subject of much contemporary controversy, with rights at the center of the debate. It is proposed that the conception of free speech whereupon the duty of respect is intrinsic to the right ought to be taken into account. Also, attention ought be paid to relations, which are encumbered by hate speech.110 The duties of respectful relations in communication that are central to Kantian theory and Jewish thought are to enter the debate. Rights are at issue in hate speech debates. The dignity of the hate speaker, grounded by their autonomy to speak as they desire, conflicts with the dignity and autonomy of the victim. The dignity of the victim may require regulation of hate speech because of its violation of the right to recognition as a human being and a member of the community.111 Also the exercise of autonomy of the victim is at risk, as often the victim of hate speech feels ostracized from society, and withdraws from democratic participation. Not only equality but liberty – including the liberty to walk the street – is harmed by hate speech.112 A delicate and challenging balancing process results, for courts and administrators.113 The duty of respect for autonomy and dignity are correlative to rights of autonomy and dignity, but also intrinsic to those rights themselves. The agent bearing rights (both the hate speaker and victim) holds duties of respect. The rights of autonomy and dignity, as well as the duties of respect correlative and intrinsic to those rights, are reciprocally held between the parties. Horizontal duties among people are the negative non-interference, but also the positive showing of respect. The duties are applicable vertically upon the state’s duty to protect victims of hate speech. Duties to speak may also arise. The duty to speak attributed for instance to the biblical prophets114 may be associated with the duty of affirmative behavior arising from the duty of respect, which may be deemed relevant to situations involving hate speech: namely, the duty to speak out against it. In addition to the bilateral nature of rights and duties regarding hate speech, the common good requires that action be taken against it. While the historic roots of hate speech law in Germany have been shown to arise from the “the world of one-on-one contact that was the concern of age-old insult law,”115 hate speech affects the community at large. The communal aspect to which Jewish tradition

158 Positive Freedom in Expression adds a layer is at play. Modern Israeli law perceives dignity as both individual and communal, and the ban on incitement to racism protects the dignity of the individual, the community, and the society.116 Courts interpret the ban in light of the constitutional requirement to respect the dignity of the individual, and also in light of dignity as an element of public peace.117 3) Expression of Authors and Worshippers Rights and the duties intrinsic to them are explored in the following chapters regarding the expression of authors, and worshippers in prayer. The two test cases examined regard copyright, and the prayer of the group of women known as the Women of the Wall in Jerusalem. The rights of expression, as well as the duties to respect authors and worshippers and their expression, are in view. Chapter 5 examines copyright doctrine’s economic rights, as well as its moral rights of attribution and integrity respecting authorial autonomy and dignity of expression. Rights of transformative use and of the modification of the previous work of another author also respect autonomy and dignity. Those rights and duties are bilateral and horizontal on the part of private actors, namely copyright owners, authors, and authors called “users” and modifiers. It is, further, the vertical duty of public authorities to uphold and enforce the horizontal duties of the private parties. Such duties of respect are not only correlative to rights of the other, but also arise from within the very rights of the authors and owners. Chapter 6 explores the values of Israel, defined constitutionally as a Jewish and democratic state. Those values are sometimes presumed to conflict, and yet are shown to cohere. The voices of the women who seek to pray at Jerusalem’s Western Wall are to be afforded respect. Such expression is the right of the women worshippers. A duty of respect correlative to the women’s rights arises, and it also stems horizontally from within the very freedom of expression of the worshippers and members of Israeli society opposing them. The duty is vertical upon the state and state-appointed religious authorities at the Wall and courts adjudicating the dispute. The ethics of communication to which both Kant and Judaism point require that respect be shown. These structures of thought affirm that autonomy and dignity are universal and unconditional for all. Both are also concerned for creativity and expression. Ethical principles from Kantian and Jewish thought may be extended to call for respect for authors and for all who express themselves in their prayer. Hence legal effects of the moral theory examined in Part I are put forward in Part II. Positive freedom is to be acknowledged as the duty of respect in, and for, expression.

Notes 1 For Kant, autonomy and the categorical imperative surround law. Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) [“GMM”] in Practical Philosophy 4:447. The object of respect is law (GMM 4:401*), and duty is respect for the law (“duty is the necessity of an action from respect for law”) (GMM 4:400) (emphasis in

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original); GMM 4:403 (“pure respect for the practical law is what constitutes duty”). The tremendous significance of duties to law in the Jewish tradition also has been seen. See also Roberta Rosenthal Kwall, The Myth of the Cultural Jew (Oxford: OUP, 2015). The universal law of right is to “so act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law.” Immanuel Kant, Metaphysics of Morals (1797) [“MM”] in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996) 6:231. Jewish law requires interpretation of law going beyond the law, the right and the good, and compassion, and setting justice as the ethical yardstick. Also to be recalled is that a reason for the Talmud preferring the rulings of Hillel was because of his treatment of Shammai’s opposing view, showing the link between moral virtue and legal credibility. David Shatz, “Interpretive Pluralism” in The Jewish Political Tradition: Authority, eds Michael Walzer and Menachem Lorberbaum, Noam Zohar, vol 1 (New Haven: Yale UP, 2000) 339–40. The role of traditional moral principles in modern Israeli law designed to fill a lacuna in the law is presented in Chapter 6. Peter Cane, Responsibility in Law and Morality (Oxford: Hart, 2002) 16; ibid 12–16. See also Chapter 5 (“people adjust their behavior in line with legal standards”). Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard UP, 1978) 248. Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard UP, 2011) 414–5. Roger Cotterrel, Introduction to Sociology of Law (London: Butterworths, 1984) 49; Leslie Kim Treiger-Bar-Am, “Defamation Law in a Changing Society: the case of Youssoupoff v Metro-Goldwyn Mayer,” 20 Legal Studies 291 (2000). The classic position is taken in Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Bloomsbury Academic, 1981) 160. Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard UP, 1986). Patrick Devlin, The Enforcement of Morals (Oxford: Oxford UP, 1965). Devlin’s view recalls the etymology from classical Greek regarding ethics as a community’s custom, as discussed in the Introduction. HLA Hart, Law, Liberty and Morality (Stanford: Stanford UP, 1963). The conjoining of the two present in theories of liberal perfectionism is put forward for instance by Thomas Hurka, Will Kymlicka and Joseph Raz, as seen in Chapter 2. Obergefell v Hodges, 576 US -, 135 S Ct 2584 (2015). See also The Constitution of Rights: Human Dignity and American Values, eds Michael J Meyer and William A Parent (Ithaca: Cornell UP, 1992). RH Fallon, Jr, “Two Senses of Autonomy,” 46 Stan L Rev 875 (1994). JL Mackie, “Can There Be a Right-Based Moral Theory?” in Theories of Rights, ed Jeremy Waldron (Oxford: Oxford UP, 1984) 171. Quoting Wordsworth, Mackie refers to the taking of duty upon “the stern daughter of the voice of God” as mythology. Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” 106 Harv L Rev 813 (1993) 868. Last Stone affirms the relevance of Jewish tradition to the ethical structure of civil society, however. Suzanne Last Stone, “Judaism and Civil Society” in Law, Politics, and Morality in Judaism, ed Michael Walzer (Princeton: Princeton UP, 2006) 12: “Without a state of their own … rabbinic writers do not discuss the role of society in relation to the state. … So, the Jewish tradition has little to contribute to the civil society/state debate. If one understands civil society, instead, as ‘an ethical vision of social life’ [citation omitted], then Judaism has much to contribute to the discussion.” Moshe Silberg writes of moral coercion, whether with or without the belief in a divine sanction for disobeying a commandment. Moshe Silberg, “Law and Morals in Jewish Jurisprudence,” 75 Harv L Rev 306 (1961). In the Jewish tradition, inside the religious order one finds “legal” norms – enforced by physical force – and “moral”

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norms subjected to other social or transcendent sanctions. Izhak Englard, “Law and Morality in the Jewish Tradition” in Religion and Human Rights Discourse, eds Hanoch Dagan, Shahar Lifshitz, and Yedidia Z Stern (Jerusalem: Israel Democracy Institute, 2014) 218. Silberg, “Law and Morals in Jewish Jurisprudence,” 75 Harv L Rev at 307 (citation omitted). The effect of duty on civil society is discussed in David Selbourne, The Principle of Duty: An Essay on the Foundations of the Civic Order (London: SinclairStevenson, 1994) 5; ibid 210 (community). Charles Taylor, The Ethics of Authenticity (Cambridge, MA: Harvard UP, 1991) 4; ibid 69 (“In a flattened world, where the horizons of meaning become fainter, the ideal of self-determining freedom comes to exercise a more powerful attraction”). A person incapable of attachments is without character. Attachments and loyalties entail duties, and “partly define the person I am.” Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge UP, 1982) 179. Onora O’Neill, Autonomy and Trust in Bioethics (Cambridge: Cambridge UP, 2002) 82. Lenn E Goodman, “The Individual and the Community in the Normative Traditions of Judaism” in Autonomy and Judaism: The Individual and the Community in Jewish Philosophical Thought, ed Daniel H Frank (Albany: SUNY, 1992) 80. See also Jeffrey Jacobsohn, Apples of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton UP, 1993) (Princeton Legacy Library edition 2017) 227 (“communal autonomy”). Daniel H Frank, “The Communitarianism-Liberalism Debate in Jewish Perspective” in On Liberty: Jewish Philosophical Perspectives, ed Daniel H Frank (New York: St Martin’s, 1999). Isaiah Berlin, “Two Concepts of Liberty” (Oxford: Clarendon, 1958) in Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford UP, 1969) 155. Berlin’s recognition of the importance for people of fraternity and social network was relayed in Chapter 4. Ibid 158. Joseph Raz, Value, Respect, and Attachment (Cambridge: Cambridge UP, 2001) 20–1. I venture a definition of responsibilities as what one should do, and duty what one must do – namely, are obligated to do. I accept Joel Feinberg’s notion of responsibility indicating discretion (but disagree that it points to stricter sanctions, for example when it is used regarding social or personal issues). Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton UP, 2014) 137. “The common good consists of our shared values about what we owe one another as citizens who are bound together in the same society – the norms we voluntarily abide by, and the ideals we seek to achieve.” Robert B Reich, The Common Good (New York: Alfred A Knopf, 2018) 18. I extend thanks to Danielle Mehler for intriguing discussion of the common good. David O Brink, Perfectionism and the Common Good: Themes in the Philosophy of T.H. Green (Oxford: Clarendon, 2003) 42–4, 53, 106; Thomas Hurka, Perfectionism (Oxford: Oxford UP, 1993) 68. Will Kymlicka, “Liberal Individualism and Liberal Neutrality,” 99(4) Ethics 883 (1989) 896–7. While Menachem Mautner's call for a state to define the common good may awaken the threats of which Berlin warns, Mautner’s argument regards socio-economic conditions: “The liberalism of flourishing would therefore expect a state’s political system to be the sphere where the state’s particular conception of the package of the conditions of flourishing, as well as the particular menu of resources to be expanded for the creation of the conditions of flourishing, is determined.” Menachem Mautner, Human Flourishing, Liberal Theory, and the Arts (London: Routledge, 2018) 59–60. Goodman, “The Individual and the Community” in Autonomy and Judaism, ed Frank.

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32 Jonathan Sacks, Covenant & Conversation: Individual and Collective Responsibility (Noach, 5776) 31 October 2016. 33 Jonathan Sacks, Covenant & Conversation: The Second Tithe and the Making of a Strong Society (Re’eh, 5775) 10 August 2015. 34 Daniel J Elazar, Covenant & Polity in Biblical Israel: Biblical Foundations & Jewish Expressions – Covenant Tradition in Politics, vol 1 (New Brunswick: Transaction, 1995) 5–6. 35 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991). Christopher McCrudden writes of the fetishizing of rights. Christopher McCrudden, “In Pursuit of Human Dignity: Introduction” in Understanding Human Dignity (Proceedings of the British Academy), ed Christopher McCrudden (Oxford: Oxford UP, 2013) 46. 36 Francis Fukuyama, The Great Disruption: Human Nature and the Reconstitution of Social Order (New York: Free Press, 1999) 47–8. 37 Onora O’Neill, Autonomy and Trust in Bioethics (Cambridge: Cambridge UP, 2002) 82. 38 Robert M Cover, “Obligation: A Jewish Jurisprudence of the Social Order” in Law, Politics, and Morality in Judaism, ed Walzer. Haim Cohn gives the example of the duty of education, which in Judaism is a duty that does not correlate to a right. Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984) 18. 39 Ernest J Weinrib, “Poverty and Property in Kant’s System of Rights,” 78 Notre Dame L Rev 795 (2003) 818; ibid at 812 (on Kant); Ernest Joseph Weinrib, The Idea of Private Law (Cambridge, MA: Harvard UP, 1995) 112 (beneficence as an ethical duty according to Kant); Ernest Weinrib, Corrective Justice (Oxford: Oxford UP, 2012) 264–8 (the Kantian view of the state’s duty to alleviate poverty). The Kantian view of perfect and imperfect duties and their relation to charity is explored in Daniel Statman, “Who Needs Imperfect Duties?” 33(2) American Philosophical Quarterly 211 (1998). 40 Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986) 170. 41 Benjamin Porat, “Rights-Based Law v. Duty-Based Law: Old Dilemma, New Perspective,” Hebrew Univ of Jerusalem Legal Research Paper No. 16–04 (November 28, 2015). 42 Nahum Rakover, Human Dignity in Jewish Law (Jerusalem: Jewish Legal Heritage Society, 1998) (Hebrew) 164 (“foremost among [the opponents was] the President of the Commission, Eleanor Roosevelt”); Mary Ann Glendon, “Foundations of Human Rights: The Unfinished Business,” 44(1) The American Journal of Jurisprudence 1 (1999) 8 (on responsibilities). 43 A/RES/53/144 “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,” with this longer title frequently abbreviated to “The Declaration on Human Rights Defenders.” 44 The Green Paper is discussed in Jeremy Waldron, “Dignity, Rights, and Responsibilities” (2010) NYU Public Law and Legal Theory Working Papers 242. 45 Linda McCain argues that “much of the communitarian discontent with rights stems from a social (rather than a jurisprudential) critique of American society centered around a complex set of social problems, attitudes, and behaviors.” Linda C McClain, “Rights and Irresponsibility,” 43 Duke LJ 989 (1994) 992. 46 Robert M Cover, “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative,” 97 Harv L Rev 4 (1983). See also Tova Hartman and Charlie Buckholtz, Are you Not a Man of God? Devotion, Betrayal, and Social Criticism (Oxford: Oxford UP, 2014). 47 Wesley N Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” 26 Yale LJ 710 (1917). 48 “We know our own freedom (from which all moral laws, and so all rights as well as duties proceed) only through the moral imperative, which is a proposition

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50 51 52 53 54 55 56

57

58

59 60 61 62 63 64 65

66 67

commanding duty, from which the capacity for putting others under obligation, that is, the concept of a right, can afterwards be explicated.” MM 6:239 (footnotes omitted). I do not engage this debate, but reference Dworkin, Taking Rights Seriously 171 (right and duty may derive from one another); O’Neill, Autonomy and Trust, 78–82; Onora O’Neill, Bounds of Justice (Cambridge: Cambridge UP, 2000) 198–9 (priority of obligations); Raz, Morality of Freedom 167, 170–1, 183–4 (right grounds duty). See also Mackie, “Can There Be a Right-Based Moral Theory?” in Theories of Rights, ed Waldron 13. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1982) 208–10 (for justice, or law, neither right nor duty is prior), 210 (one’s benefit or right is required in justice by others). Jonathan Crowe, “Explaining Natural Rights,” 4 NYU J Law & Liberty 70 (2009) 79. Ibid 82 (“Since every course we follow is pregnant with alternative paths it appears we might have taken, it seems that we cannot avoid accepting ultimate responsibility for our choices”), 101, 110. Jeremy Waldron, “Dignity, Rights, and Responsibilities” in NYU Public Law and Legal Theory Working Papers (2010) 242. Related is the critique described by Gerald MacCallum in Chapter 2 of Berlin’s distinction that takes negative and positive liberty as separate, with the critique taking them as a single concept. Berlin’s response reflects the passion for freedom. Daniel Statman, “Thoughts on Rights and Duties,” Israel Democracy Institute (November 17, 2010) (Hebrew). I am grateful to Daniel Statman for the discerning discussion of rights and duties. The Talmudic recognition of rights is said to be only of acquired rather than innate rights. David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton, Princeton UP, 2009) 27 (“It is not what a person ‘holds’ as much as it is what a person has been granted – and by implication, what can be revoked”). MM 6:232; MM 6:230 (the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom), 6:231, 6:237; Richard Wright, “Right, Justice, and Tort Law” in Philosophical Foundations of Tort Law, ed David Owen (Oxford: Oxford UP, 1997) 164. Peter Jones, Rights (London: MacMillan, 1994) 26; NE Simmonds, Central Issues in Jurisprudence (London: Sweet and Maxwell, 1986) 306, 311–2. The will or choice theory is debated in HLA Hart, “Legal Rights” in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon, 1982) 193 (the characterization of a right as a choice respected by the law is however not a sufficient one). Jeremy Waldron, “Introduction” in Theories of Rights, ed Waldron 13. Dworkin, Taking Rights Seriously 172. Novak, Covenantal Rights 208. Novak notes that there is often “a false assumption that rights have no place in pre-modern religious traditions.” Ibid x. Eugene B. Borowitz, “Autonomy and Community” in Autonomy and Judaism, ed Frank 11. BT-Baba Kama. Porat, “Rights-Based Law v. Duty-Based Law.” Haim Cohn, Human Rights in Jewish Law 21. See also Yehuda Brandes, Judaism and Human Rights (Jerusalem: Israel Democracy Institute, 2013) (Hebrew); Arthur J Jacobson, “Hegel’s Legal Plenum,” 10 Cardozo L Rev 877 (1989) 893 (the “source of law in the jurisprudence of duty in the first instance is God, the issuer of commands”); Silberg, “Law and Morals in Jewish Jurisprudence,” 75 Harv L Rev at 312–13 (the payment of a debt is the religious-moral obligation of the debtor). Porat, “Rights-Based Law v. Duty-Based Law.” Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 208.

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68 Stephen Gardbaum writes on US and comparative law. Stephen Gardbaum, “The Horizontal Effect of Constitutional Rights,” 102 Michigan L Rev 399 (2003). Horizontality in UK law, including with regard to the freedom of expression, is examined in Alison L Young, “The Human Rights Act 1998: Horizontality and the Constitutionalisation of Private Law” in Current Problems in the Protection of Human Rights: Perspectives from Germany and the UK, eds Katja S Ziegler and Peter M Huber (Oxford: Hart, 2013). 69 Barak supports the horizontality of public law values, but believes that the application of rights – including dignity and speech – on the horizontal plane is more limited, as rights conflict. Aharon Barak, Human Dignity (Cambridge: Cambridge UP, 2015) 304–5; Aharon Barak, “Constitutional Rights in Private Law” in Israeli Constitutional Law in the Making, eds Gideon Sapir, Daphne Barak-Erez, and Aharon Barak (Oxford: Hart, 2013) 379. The issue is examined in Human Rights in Private Law, eds Daniel Friedmann and Daphne Barak-Erez (Portland: Hart, 2001); Jean Thomas, Public Rights, Private Relations (Oxford: Oxford UP, 2015). 70 CA 294/91 Kastenbaum v Havre Kadisha, IsrSC 46(2) PD 463 (1992). 71 Roberta Rosenthal Kwall, “Creativity and Cultural Influence in Early Jewish Law,” 86 (5) Notre Dame L Rev 1933 (2011) 1938. 72 Gordon Freeman, “The Rabbinic Understanding of Covenant as a Political Idea” in Kinship and Consent: The Jewish Political Tradition and Its Contemporary Uses, ed Daniel J Elazar (Lanham: Univ Press America, 1983). 73 Stephen Darwall, Morality, Authority and Law: Second Person Ethics (Oxford: Oxford UP, 2013). 74 Weinrib, The Idea of Private Law 132–3. 75 Jürgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” 41(4) Metaphilosophy 464 (2010) 469. Habermas calls for discourse ethics with a sense of horizontality, as referred to below regarding expression. 76 Jeremy Waldron, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” 68 Chi-Kent L Rev 842 (1993) 876–7. Waldron acknowledges the necessity of balancing rights in situations of hate speech, as indicated below. 77 Kathleen M Sullivan, “The Supreme Court Foreword: The Justices of Rules and Standards,” 106 Harv L Rev 22 (1992); Neil Weinstock Netanel, “Locating Copyright within the First Amendment Skein,” 54 Stan L Rev 1 (2001). 78 Dworkin, Taking Rights Seriously 199. 79 Barak, “Human Dignity” in Understanding Human Dignity, ed McCrudden 377. 80 Barak, Human Dignity 134. On Barak’s view, conflicts are resolved upon balancing on the sub-constitutional level, with the rules of proportionality. Ibid. 81 McCrudden, “Introduction” in Understanding Human Dignity, ed McCrudden (footnote omitted), citing discussion with Waldron. 82 Gregory C Keating, “Comment on Gardner: Duty and Right in Private Law,” USC Gould School of Law, Legal Studies Research Papers Series No. 16–44, 2016 (on obligations of care in private law). 83 For example, Miller v Wal-Mart Stores, 219 Wis2d 250 (1998) 260 (“In Wisconsin, everyone has a duty of care to the whole world”). The California Supreme Court, echoing a 130-year-old statute, has remarked “[i]n this state, the general rule is that all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct.” Randi W v Muroc Joint Unified School Dist, 14 Cal 4th 1066 (1997) 1077. 84 Basic Law: Human Dignity and Liberty (Article 4). The negative aspect set forth in Article 2 proclaims the state’s duty not to limit a constitutional right. Barak, “Constitutional Rights in Private Law” in Israeli Constitutional Law in the Making, eds Sapir, Barak-Erez, and Barak 395–6 (on positive rights and duties of the state). The protection of dignity in Article 4 has been interpreted by the Israeli Supreme Court to affirm some socio-economic rights. Barak, Human Dignity 288–92 and cases cited therein.

164 Positive Freedom in Expression 85 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford UP, 2008); John Christman, “Saving Positive Freedom,” 33(1) Political Theory 87 (2005). 86 Chapter 2 presents Raz’s view on options and Christman’s tying resources that enable the development of capacities for human agency to a positive sense of freedom. Raz. Morality of Freedom 204; Christman, “Saving Positive Freedom.” 87 Feinberg, Rights, Justice, and the Bounds of Liberty 134–5. 88 The Israeli statute was enacted in 5758–1998. 89 Owen M Fiss, The Irony of Free Speech (Cambridge, MA: Harvard UP, 1996). Compare Margaret J Radin, Contested Commodities (Cambridge, MA: Harvard UP, 1996) 166. 90 Patrick Macklem, The Sovereignty of Human Rights (New York: Oxford UP, 2015) 6–9 (on the universality of obligations proclaimed by James Griffin and John Tasioulas). 91 Dawn Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999) 62. Joel Feinberg discusses numerous types of duties, and calls duties of respect correlative to negative rights, while what he terms duties of community membership are positive in rem duties. Feinberg, Rights, Justice, and the Bounds of Liberty 134–5. 92 Nicholas J McBride, “Duties of Care: Do they Really Exist?” 24(3) Oxford J Legal Studies 417 (2004). 93 Oliver, Common Values 12, discussing Donoghue v Stevenson [1932] AC 562, HL. 94 Keating, “Comment on Gardner.” “[T]alk of rights seems out of place in connection with some strictly relational duties.” John Gardner, From Personal Life to Private Law (Oxford: Oxford UP, 2018) 53. Gardner disagrees with the notion of the bipolarity of right and duty put forward above. Ibid 21, 55. 95 Oliver, Common Values 12. 96 Alon Harel, Why Law Matters (Oxford: Oxford UP, 2014) 60. 97 Good faith is termed a “valve concept” in private law, the interpretation of which is done on the basis of “the basic values of the legal system.” Barak, “Constitutional Rights in Private Law” in Israeli Constitutional Law in the Making, eds Sapir, BarakErez, and Barak 390. 98 Waldron’s argument that dignity requires the recognition of legal standing is discussed in Chapter 4. People view law as fair and are willing to accept law as legitimate when they view it as fair in terms of procedure. Tom R Tyler, Why People Obey the Law (Princeton: Princeton UP, 2006). 99 John Tasioulas, “Human Dignity and the Foundations of Human Rights” in Understanding Human Dignity, ed McCrudden. 100 Barak gives the example of the German Constitutional Court striking down legislation authorizing the shooting down of a passenger aircraft aimed to kill others, as the Court held that it would allow the use of the passengers as a means. Aharon Barak, “Human Dignity: The Constitutional Value and the Constitutional Right” in Understanding Human Dignity, ed McCrudden; Barak, Human Dignity 124–5 (objektformel). 101 Oliver, Common Values 62. Dworkin’s analysis of the judicial method of interpretation based on political morality addressed in Chapter 2 relies upon values underlying society. Harel understands dignity sometimes as a right and sometimes as a value indicating the justification for protection of rights. Harel, Why Law Matters 62–3. Moshe Cohen-Eliya recommends against the rhetoric of values, which he calls vague. Moshe Cohen-Eliya, “The Israeli Case of a Transformative Constitution” in Israeli Constitutional Law in the Making, eds Sapir, Barak-Erez, and Barak 175–9. The discussion earlier of the rhetoric of rights can be compared. 102 Jeremy Watkins, “Responsibility in Context,” 26(3) Oxf J Leg Stud (2006) 593. 103 Further, Harel argues, rights thereby facilitate the exercise of autonomy. Harel, Why Law Matters 42. 104 Waldron, “Dignity, Rights, and Responsibilities” 4.

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105 Virginia v Black, 538 US 343 (2003) 347–8. The statute was however struck down because it allowed a presumption of defendants’ intent. 106 Jürgen Habermas, The Theory of Communicative Action (Boston: Beacon, 1984); Jodi Dean, “Discourse in Different Voices” in Feminists Read Habermas (RLE Feminist Theory): Gendering the Subject of Discourse, ed Johanna Meehan (London: Routledge, 2013). 107 John Fleming, “Libel and Constitutional Free Speech” in Essays for Patrick Atiyah, eds Peter Cane and Jane Stapleton (Oxford: Clarendon, 1991) 333, 337. Where speech and non-speech elements are mixed, a balance – even while still not explicit – is more clearly undertaken. United States v O’Brien, 391 US 367 (1968) 376. 108 Melville B Nimmer, “The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy,” 56 Cal L Rev 935 (1968) 938–48. 109 Campbell v Mirror Group Newspapers [2004] UKHL 22, [2004] 2 AC 457. 110 Robin West, “Toward a First Amendment Jurisprudence of Respect: A Comment on George Fletcher’s Constitutional Identity,” 14 Cardozo L Rev 759 (1993) 761. 111 Steven J Heyman, Free Speech and Human Dignity (New Haven: Yale UP, 2003); Frederick Schauer, “Speaking of Dignity” in The Constitution of Rights, eds Meyer and Parent (dignity can clash with the principle of free speech). Hate speech and dignity is examined by the Cohen Committee’s findings, discussed by the Canadian Supreme Court in R v Keegstra [1990] 3 SCR 697. 112 West, “Toward a First Amendment Jurisprudence of Respect,” 14 Cardozo L Rev at 764. Autonomy and dignity are taken up in David Kretzmer, “Freedom of Speech and Racism,” 8 Cardozo L Rev 445 (1987) 465, 484. 113 Jeremy Waldron, “Dignity and Defamation: The Visibility of Hate,” 123 Harv L Rev 1596 (2010) 1654. Respect and responsibilities regarding speech are addressed in Evan Simpson, “Responsibilities for Hateful Speech,” 12(2) Legal Theory 157 (2006). 114 Haim Cohn, Human Rights in the Bible and Talmud, trans Shmuel Himelstein (Tel Aviv: Modern Books, 1989) 72, discussed in Chapter 4. 115 James Q Whitman, “Enforcing Civility and Respect: Three Societies.” 109 Yale LJ 109 1279 (2000) 1339–40. 116 Mordechai Kremnitzer, “The Elba Case: A Clarification of the Rules of Incitement to Racism,” 30 Mishpatim (1999) 105 (Hebrew). 117 For criminal rulings on the Penal Law 5737–1977 §144b, see 2831/95 Elba v State of Israel, PD 50(5) 221; 71624/05 Ben Ezra Pniri v State of Israel; 8612/04 HaIvri v State of Israel; 1831/06 State of Israel v Federman; 3769/03 State of Israel v Tahan Shmuel; 4066/07 State of Israel v Ofen Neria.

5

Authors’ Rights and Duties

Copyright affords its owners exclusive rights of reproduction of works of authorship. Authors’ rights and copyright are of widespread concern in contemporary society. While much is written on copyright in law and the arts, copyright has also been placed in the context of an ethical structure.1 In light of the concept of positive freedom, it is proposed that copyright doctrine take into account obligations in addition to freedoms, and duties of respect in addition to rights. The conception of positive freedom in light of Kantian and Jewish thought promotes an ethic of communication for authors. While copyright is intended to support authorial expression, to promote the arts and encourage learning, in the current age that goal is often not met. Copyright doctrine has expanded over the years to afford considerable control over expressive works. Copyright is regularly held by owners to whom the rights have been transferred, rather than the creative authors themselves. Creative expression is threatened by the current law of copyright. A telling example is Jon Else’s documentary film on the production of an opera, depicting stagehands in a backstage room where a background shot showed the broadcast on TV of a popular series. The juxtaposition made an interesting comment on what is known as high and low culture. Else sought permission from the copyright owner of the TV series for the 4.5 second shot, and was sent to a major holding company. The company requested such a high sum as a license fee to permit the broadcast that Else removed it from his film.2 Copyright doctrine appears especially incoherent in the digital world, where even searching on the internet involves copying. The copying and modifying of works abounds. It is not only normal, but has become the norm in what may be described as a sharing culture. Yet self-expression is also – still – a norm recognized in today’s digital age. The self is not deconstructed; it continues to thrive. Arguably the notion of the self has magnified, given the prevalence of subjectivity. Moreover, in an age where social networking is prevalent, people continually express themselves. Even reading becomes an active act of self-expression. In the common practice of reviewing and commenting on what is read, so-called users are themselves creators. Self-expression has become even more expanded in the virtual world, which is perceived to be democratic.

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The conceptual structure for considering copyright that is in view regards expression. It is proposed that the works of all authors are to be seen in this light, including the prior and subsequent creators (including so-called “users”), the readers (including the viewers, the listeners and generally the audience) and the public. In light of positive freedom, obligations in addition to freedoms – and duties as well as rights – come forward. Duties of respect are not only correlative to these rights, but are intrinsic to the rights themselves. Rights and duties require bilateral relations, the effects of which may be felt across society. Guidelines may be fashioned to trim the excesses of copyright doctrine and adhere it to contemporary norms. Those guidelines are put into focus by the ethic of communication applying to authors derived from Kant and Judaism. Authors and the public are instructed to treat each other with respect. Enhanced moral rights within copyright doctrine, and further acceptance of copying and of modification upon rights of fair use and fair change, are examples of principles put forward. The discussion begins with a presentation of the expression model. The theoretical support of the autonomy of expression for authors in Kantian theory and Jewish thought is presented. In light of these principles, how is authorship is to be conceived, and to whom are rights of protection to be extended? The law of the US is in focus, with occasional references to the laws of the UK, Israel, and other jurisdictions. Concluding remarks propose principles for copyright doctrine upon a view of positive freedom, whereupon it is submitted that rights entail duties.

I Expression Model Copyright may be viewed upon an expression model, and understood from an instrumental or deontological perspective. Also the freedom of expression is justified on the basis of rationales both instrumental and deontological. It is the deontological approach to expression that is promoted by Kantian theory and Jewish thought, and that is considered here. In light of positive freedom, the expression model promotes rights and duties. Copyright models are instrumental or deontological. The Anglo-American incentive model is instrumental: authors are presumed to rely upon the incentive of copyright protection and profits for their efforts of creation.3 The Continental deontological models for authors’ rights (droit d’auteur) are rights in property (in France) and personality (in Germany).4 Copyright is often considered to exist on two norms and, indeed, as caught between them.5 Yet both instrumental and deontological aspects of the doctrine function side by side.6 In both civil law and common law regimes, copyright is presumed to surround rights. While copyright on the Anglo-American incentive model is understood instrumentally to further the public interest, copyright owners frequently make strong claims to property rights. On the droit d’auteur model in Continental Europe, authors’ rights are characterized as property or personality rights. But in all of these various jurisdictions, the protection of authors is fundamentally a right.

168 Positive Freedom in Expression Moral rights in copyright may be termed deontological rights. Moral rights are of central importance on the French model, and present as well in the US and UK pursuant to the Berne Convention for the Protection of Literary and Artistic Works 1886(“Berne Convention”). Moral rights protect the rights of the author, even when copyright ownership has been transferred. The moral rights adopted by the Berne Convention and present in 177 countries around the world are the rights of attribution and integrity, protecting the author’s association with the work and the work’s intended presentation. Expression rights are approached from both instrumental and deontological perspectives as well. The traditional rationales for the freedom of expression in US and UK legal doctrines are democracy, truth and autonomy. The autonomy rationale (discussed in Chapter 4) is deontological in affirming the human natural right. The democracy and truth rationales (discussed further in Chapter 6) support the freedom of expression as instrumental to the furthering of democracy and the marketplace of ideas. The US freedom of expression doctrine bears a number of similarities with copyright doctrine.7 Just as copyright has been understood to prevent compelled speech, First Amendment cases hold that one who chooses to speak may also decide what not to say. The US Supreme Court has ruled that the First Amendment does not allow a state law to compel a private body to undertake an expressive activity which would create a misattribution of its views.8 Numerous US Supreme Court cases prevent compelled speech. The Court has ruled against the compulsion to salute the flag,9 a law compelling a newspaper to print a political figure’s reply to a press critique,10 and a rule that a license plate must include the slogan “Live Free or Die.”11 The principle of non-distortion has also been recognized by courts in freespeech cases. In the words of the UK Court of Appeal in Ashdown v Telegraph Group: “The prime importance of freedom of expression is that it enables the citizen freely to express his ideas and convey information. … in a form of words of his or her choice.”12 In Ashdown the Court recalled the European Court of Human Rights ruling that “Article 10 [of the European Convention] protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.”13 In the US, the Supreme Court has upheld the right to express one’s ideas in the manner that one chooses, in terms of both content and form of presentation.14 In school cases, the speaker is held to be able to take steps to “ensure that its message is neither garbled nor distorted.”15 Copyright is said to further expression insofar as it is an instrument for copyright’s purpose of promoting the progress of science and the arts (pursuant to the US Copyright Clause of the Constitution) and for the encouragement of learning (pursuant to the UK Statute of Anne 1710). In the US, the function of copyright to promote expression has been noted in the oft-cited case Harper & Row v Nation Enterprises, with the Supreme Court calling copyright “the engine of free expression.”16 Copyright also has been characterized on a deontological approach. Copyright is said to have stemmed from authors’ rights of self-determination. “[C]opyright laws corresponded to the overall shift toward private rights,” including the civil

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law private rights of property and of the press. The period which witnessed the rise of copyright evidenced the “idea of the intrinsic value or dignity of the individual.”18 Authorial rights are identified as a human right pursuant to the Universal Declaration of Human Rights (“UDHR”) Article 27: 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.19 The Assembly of the Berne Union in 1986, for the centenary of the Berne Convention, declared that “copyright is based on human rights.”20 Historic links have been shown between the enactment (constitutional and statutory) of Anglo-American copyright and Continental droit d’auteur and individual rights of respect in expression.21 The US copyright law developed in parallel with the development of the freedom of expression doctrine.22 England’s first copyright orders resulted from the Stationers Guild campaigning for control over the book trade,23 but the Statute of Anne has been judged a law redirecting copyright’s purpose from censorship towards freedom of expression.24 Copyright is analyzed on planes both deontological and instrumental. Neil Weinstock Netanel presents authorial autonomy,25 and also shows the instrumental function copyright played to promote creative expression when patronage ended.26 Fiona Macmillan examines copyright’s protection of “cultural output … as an expression of human creativity and autonomy” and “as a means of communication within the larger cultural, social, and political domain.”27 Understanding copyright deontologically as upholding rights of expression has received favorable responses by commentators on copyright. Expression has been assessed as having played a role in shaping intellectual property rules.28 Copyright is termed a right of expression,29 and moral rights are said to cohere with guarantees of some integrity for speech, with expression remaining unadulterated.30 Michael Spence terms the integrity right an expression right, and a right of autonomy.31 Works of authorship are expressions of dialogical transactions between and among authors and the public, on Lior Zemer’s characterization.32 Abraham Drassinower analyzes copyright infringement as compelled speech, in accord with Kantian thought.33 As a deontological right, as well as an instrumental means towards public benefit, the two norms come together. The deontological view that Kant takes of authorial expression is explored in the next section.

II Kantian and Jewish Thought Kantian theory and Jewish thought can illuminate prominent principles of the expression model. Both place great emphasis on the spoken word. As discussed in Part I, Kant labels communication among a person’s natural ends. Kantian

170 Positive Freedom in Expression autonomy has engaged expression, and the conception of the autonomy of expression further developed from it. Jewish thought affirms the centrality of language and the beauty and power of speech, as well as the human as a creative being in the image of God. Freedoms of speech have been prevalent as well. Biblical narrative abounds with tales of negotiations with God. Interpretation of God’s word from Talmudic times and on has been called an autonomy of expression. Here the freedoms of, and duty to, respect the speech of authors is in view. Kantian and Jewish thought relate to creative expression widely in all art forms. Both safeguard authorial expression regarding the choice of agent, the integrity and the attribution of one’s speech. Respect is due for and from the speaker, as well as for the speech itself. These principles are shown further below to be upheld in copyright doctrine.34 A. Kant 1) Autonomy of Expression in All Creative Works Putting forth principles in support of authorship, Kant has an essay: On the wrongfulness of unauthorized publication of books (“Essay”).35 Kant’s Essay can be read in light of his ethical theory of autonomy. Kant did not fully expand on the theory that autonomy protects copyright. As Paul Edward Geller writes, in his Essay Kant “did not give the fullest logical extension to his theory that copyright was to assure the autonomy of personal self-expression.”36 Yet that extension can be found elsewhere in Kant’s moral theory. Kantian autonomy can be considered to support the autonomy of expression, as put forward in Chapter 4. The modern concept of the autonomy of expression can be traced through a Kantian lineage. Kant indeed draws an analogy between moral autonomy and creative genius in art. The genius sets his own rules, as with moral autonomy.37 Kant’s Essay extends the principles of autonomy of expression to authors. I view Kant’s central argument in the Essay to be one of authors’ autonomy and expression. Kant’s Essay supports publishers’ economic rights.38 Yet publishers deserve to receive protection because they are the agents of the authors; a publisher’s right derives from the right of the author. “The right of authors to assert continuing control over their works … is entirely consistent with larger themes in Kant’s philosophical system” such as Kantian autonomy and dignity.39 Creative expression in literary works is the subject of the Essay, with Kant arguing: “[i]n a book, as a writing, the author speaks to his reader.”40 A book is a person’s dialogue with the public; it “represents a discourse that someone delivers to the public” (MM 6:289). In the Essay, Kant distinguishes between literary and visual artworks. Kant sees literary work as speech and action (opera), yet visual work as a thing in property (opus).41 Kant’s distinction indicates the thing-ness of a visual work, namely its close relation to its own materiality. Kant’s distinction also reflects traditional views of hierarchies of the arts, for example, by Plato42 and

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Leonardo Da Vinci. For Kant, the hierarchy of the arts is determined according to which best cultivates us to morality,44 through engaging the “power of judgment.”45 While Kant’s Essay regards only literary works, its principle shows Kant’s support for all forms of authorial expression. I submit that the distinction Kant made in his Essay was due to the limited technologies of reproduction at the time. A reproduction of a literary work printed via a printing press did not depend upon the second printer’s addition of their own expression to the work. At that time, before automatic and digital techniques of reproducing artworks arrived, the reproduction of a visual work did reflect the second artist’s own expression. It demanded input and expression from the copier. GWF Hegel makes this reasoning explicit in his distinction between the two art forms.46 It was the exact copying of a book by a printing press that Kant was opposing.47 Despite distinctions between them, Kant recognizes all artworks as expressive. In the Critique of Judgment, artistic spirit is called the talent to express ideas and to make them universally communicable, whether the expression consists in language, or painting, or in plastic art.48 Beauty is the expression of aesthetic ideas.49 2) Choice of Agent The author of a book is to choose the agent for their speech to the public. An author selects a publisher as agent, for the conveyance of the author’s speech to the public. According to Kant: “a publisher carries on another’s affair by publishing. … [He is the] one through whom the author speaks to the public ….”50 The unauthorized publishing of a book violates the author’s choice of an agent and forces the author to speak against his will. Another person may not transfer the speech of an author to the public without the author’s approval: “[I]t is a contradiction to deliver in one’s own name, a speech that … is to be the speech of another.”51 The person who posted the author’s work without permission does not respect the autonomy of the author. 3) Integrity Kant’s Essay supports the principle of non-distortion of an author’s work. An individual chooses their speech, namely the words of his statements and writings. The author must be protected against compulsion of unauthorized speech. The innate personal right is a right not to be compelled to speak against one’s will.52 Unauthorized publication of a writing under the name of the author is a violation of the author’s will (unless the work is revised and printed under another’s name, i.e. transformed).53 Kant condemns a publisher who may “give out the author’s work, after his death, mutilated, falsified, or interpolated. …”54 The principle of non-distortion of speech is evident also in the Metaphysics of Morals. Telling a lie may be understood as a distortion of one’s own speech. According to Kant not telling lies is a duty to oneself. An “intentional untruth in the expression of one’s thoughts” is a violation of one’s ethical duty to oneself, on the doctrine of virtue.55

172 Positive Freedom in Expression 4) Attribution Kant further supports attribution of a work to its author. Upholding the truth requires that the book be attributed to the author, according to his name. For Kant, the association of the name of an author with a work he has not chosen to publish, or a work that has been changed from the work as he created it, is violative of the author’s autonomy of expression.56 Support for authorship in all art forms and the further three principles reviewed are found in Jewish thought as well. These principles are also set forth in copyright doctrine. B. Judaism 1) Creative Expression in All Art Forms While the Bible instructs not to make graven images to serve in idol worship, Judaism has a rich tradition of creativity.57 Literary works abound, such as the poetry of biblical work (for example, the Song of Songs) and the songs of prayer that were extensively produced in the Middle Ages. Examples of musical and visual works include the biblical tales of the harp (or lyre) played by King David, and the elaborate decorations including images of a candelabrum on the ancient Temples. The artistic expression involved in the building of the portable Tabernacle during the Jewish people’s wandering in the desert after their exodus from Egypt is underscored in biblical narrative. The Jewish ethics of freedom and obligations of communicative expression were set forth in Part I. The required respect of speakers and authors ensues – and an ethical code governing relations between authors. Principles in biblical narratives and Jewish law prevent coerced speech, and require that speakers not repeat another’s words without authorization, respect the completeness of an author’s work, and not distort or misattribute it. 2) Choice of Agent An author’s choice of agent to communicate his speech is safeguarded in Jewish tradition. God chose prophets to relay His words. So too a human being’s choice of agent for speech is to be respected. Hence an author’s choice of agent for his speech was honored, insofar as publishers’ rights were upheld. The Bible points to God’s election of true prophets to bear God’s words, and rejection of false prophets. For the true prophet, God says: “I will put My words in his mouth.” God derides the false prophet for saying words “which he shall speak in My name” (Deut. 18:18–19; 18:20–2). Jeremiah further distinguishes between true prophets, and those who prophesy falsely in God’s name (Jeremiah 27:9, 14–16). Also an author may choose his agent. We are to receive the words of authors from them directly, or from those whom the authors have authorized to speak on

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their behalf. This issue concerns one’s copying from books deposited for safekeeping. Copying secular words without permission from the author is prohibited theft. However, an approach offering an exception in the public interest proffers that it is permitted to copy the words of Torah learning to reach the public.58 For example, in the 16th century, rabbis discussed the controversy regarding the printing of books of Maimonides.59 Relatedly, the Bible (Levit. 19:13) prohibits stealing, which the rabbis interpret to bar stealing words and works. The prophet Jeremiah condemns stealing the words of God from neighbors (Jeremiah 23:30). Also upon an economic incentive, Jewish law has, for centuries, protected authors’ exclusive publication rights.60 Copyright principles since the Renaissance and through to today are evident in religious court rulings, as Netanel and David Nimmer have shown.61 3) Integrity An author’s words are not to be distorted. In the Garden of Eden Adam misstated God’s words when recounting God’s words to Eve: Adam stated that God prohibited touching the Tree of Knowledge (as is presumed from Genesis 3:3), rather than eating from it, as God had, in fact, instructed (Genesis 2:17). Rabbinic commentary advises that the expulsion from the Garden of Eden may have been prevented had the integrity of God’s speech been maintained. As Adam failed to respect the integrity of God’s words and improperly told Eve that the injunction was not to touch the tree, the expulsion from the Garden of Eden was inevitable.62 Also the words of human authors are not to be changed. Jewish law warns against distortions of a work in a conglomeration.63 Distortion is false testimony. A creator’s right to resist arbitrary changes that others may bring to his work has been called a natural right of every person to defend against false testimony about him.64 Moreover, using and changing words of the Sages may lead to degradation in relation to wisdom.65 A wise man bears responsibility over negative consequences of the use of his words. Similar to the exception of choice of agent to protect the public interest, so too an exception is made to the principle of non-distortion in the interest of others. Peacekeeping justifies making changes to someone’s words. In a biblical narrative where God speaks to Abraham and recounts words of Abraham’s wife Sarah, God’s change of her words is presumed in order to keep the peace of Abraham and Sarah’s home. Sarah had laughed at the notion that she would become pregnant given that Abraham was old. To protect hurt to Abraham from her words, God told Abraham that Sarah had said that she was an old woman (Genesis 18:12–13). 4) Attribution Jewish law requires crediting an author’s name when repeating his speech. An early Talmudic passage emphasizes the importance of attributing a work to its author: “Whoever reports a saying in the name of the one who said it brings

174 Positive Freedom in Expression redemption to the world.”66 A further Talmudic tractate reveals the roots of this rule: in the Purim story, Queen Esther said to King Ahasuerus that it was her uncle Mordechai that had informed the guards about the conspiracy against the king.67 Esther’s telling who had said these words marked proper respect for Mordechai, and the rabbis point to this as reason for the people’s survival. Moreover, in his “Antiquities of the Jews,” the historian Josephus, in Roman times, praises Moses for applauding the management advice of Jethro, and the Bible’s recounting of the prophecy of Balaam.68 Rabbis warn that non-attribution causes the disappearance of truth.69 Again, an exception to the principle of attribution is made in consideration of the public interest. There is a debate as to whether changing the names of sages is permitted. According to one opinion, the prohibition may be in effect only when the replacement leads to a change in the law.70 Another exception regards the situation where someone who wants his words to be accepted will attribute his words to a great personality, even if the latter did not make the statement.71 Moreover, the withholding of names of early sages in later writing is debated; while some see this as plagiarism, others take it as habit, since there is no need to mention the names of great prior sages whose position and name are, in any event, widely known.72 The principles protecting and valuing authorship present in Kantian and Jewish thought signify positive freedom. These principles are present in copyright doctrine, and may be used as guiding tools to refine the doctrine. The expression model of copyright is thereby further developed.

III Copyright as Positive Freedom When authorial rights are viewed on the expression model in light of positive freedom, rights of expression and duties of respect are highlighted. It is submitted that copyright law ought to reflect these principles – many of which are already apparent in copyright doctrine – more forcefully. In view here are 1) the characterization of copyright infringement as compelled speech, and copyright protection extending to all art forms; 2) a moral philosophy of moral rights protecting authorial dignity, and safeguarding all creative expression; 3) the autonomy of expression of all authors, via the rights of fair use and fair change, and their duties of respect. A. Copyright on the Expression Model Viewing copyright on a model of expression is affirmed by principles put forward in Kantian and Jewish thought. Coerced speech is condemned in the Bible and halacha, as well as by Kant. The foundational ethics of communication set forth earlier are to be recalled. The scope of application of copyright principles may be informed. Kant calls a literary work speech and action (opera).73 The Kantian view of authorship as an act of expression supports the suggestion of scholars who call for

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a return to the focus on authorial rights as protection of conduct rather than as a commodification of the author’s work.74 Carys Craig and Drassinower underscore the Kantian characterization of writing not as a commodity but as an act.75 Moreover, the expression model is supported by Kant’s considering the disrespect of an author’s choice of agency as compelled speech. Aspects of other copyright models may be compared. The property model is not herein rejected. The view of copyright in accordance with the expression model does not deny copyright’s associations with property, even while it strengthens the associations with expression. Understanding Kant’s Essay as applying his moral theory to the autonomy of authorial expression does not require rejection of associations of Kant with rights of property in copyright. Kant’s Essay also, and on some views centrally, supports publishers’ economic rights.76 It could be argued that the Anglo-American incentive model is anti-Kantian, insofar as it calls for incentivizing authors so as to use them as a means for the public benefit. That argument is not however pursued here. To which works does copyright protection apply? On the expression model, and in light of principles arising from Kantian theory and Jewish thought, the safeguarding of authorial expression in all art forms is to be strengthened. As shown earlier, both Kant and Judaism identify expression in a wide range of artistic forms. Authors are defined under copyright law to include creators of expression in literary, artistic, dramatic and musical form, as well as some computer-generated works. The subsistence of copyright given the legal classification of works is too limited. In the contemporary age, expressive works include performance art, presentations and digital art. Copyright protection was denied for instance to a film using a technique that made the images move so quickly that it would have been impossible for a human to perform the moves.77 A UK Court denied protection to the musical group Oasis for its preparation of a scene to photograph for an album cover; the Court ruled that it could not be a collage (a protected art form) as it had no glue.78 The protection of graffiti art (5Pointz) in a recent US Court ruling may indicate acknowledgment of new art forms.79 B. Moral Philosophy of Moral Rights An author bears inalienable noneconomic moral rights under copyright. The integrity right is in focus in the present discussion. Authors’ works are to be respected when modified. A paradigm of the moral right of integrity is Duchamp’s work LHOOQ in which he added a mustache to a copy of Da Vinci’s Mona Lisa. Ought the law to protect the Da Vincis or the Duchamps of our time? It is submitted that the expression of both is to be respected. 1) Autonomy of Expression The moral right of integrity allows an author to select and preserve the intended presentation of the content and form of their work.80 Moral rights affirm authorial

176 Positive Freedom in Expression autonomy of expression.81 As Zemer has shown, moral rights may be perceived in light of the Buberian dialogic theory of encounter, ensuring that the use of a work “will acknowledge the author in his uniqueness and wholeness.”82 In the words of Roberta Rosenthal Kwall, moral rights affirm norms of authorship, dignity and morality.83 The Berne Convention includes two moral rights provisions. The integrity right offers the author the right to prevent prejudicial modifications to her work. The attribution right requires that the author be given credit for her work.84 The Berne Convention has been incorporated into jurisdictions’ statutory laws around the globe. The Berne Convention’s Article 6bis provides as follows: Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to, the said work, which would be prejudicial to [the author’s] honor or reputation. A well-known moral rights case is Snow v The Eaton Centre in Canada. In that case a shopping center owner placed yellow ribbons on the geese made by a sculptor, in celebration of the holiday season. The plaintiff-sculptor sued for infringement of the moral right of integrity and won.85 The United States enacted a limited form of moral rights protection in the Visual Artists Rights Act of 1990, 17 USC §106A (“VARA”). The incorporation of the Berne Convention had been heavily opposed due to the moral rights provisions, and VARA has continued to be met with severe criticism.86 VARA offers limited moral rights protection as it applies only to original visual artworks and not to literary or musical works, and not to copies (except limited-edition lithographs). VARA also prevents the destruction of original artworks (if intentional or grossly negligent), but only of fine arts of “recognized stature.”87 A further insight that Kant may lend to copyright’s protection of works of expression is that all art forms are creative expression (as Kant puts forward in the Critique of Judgment). In addition to the extension of the categories of subsistence of copyright, it is recommended that VARA’s narrow scope be expanded. It is said that a picture paints a thousand words. Arguably, then, the limited scope of VARA’s protection of expressive works is implausible. Kantian and Jewish thought likewise illuminate the relation of freedom and dignity. According to Kant, autonomy grounds dignity. In Jewish thought, the kavod of the free human being has been shown to have taken on the meaning of dignity. Also in modern Israeli law, the Basic Law: Human Dignity and Liberty associates freedom with dignity. Because the integrity right protects the autonomy of expression, it can be understood to protect the dignity that is grounded by that autonomy. The phrase regarding “honor” in the statutory provision of the integrity right can be understood in that light.

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2) “Honor” as Dignity The integrity right allows the author to prevent modifications that would be prejudicial to the author’s “honor or reputation.” In many jurisdictions, “honor” is presumed to be similar to “reputation,” and interpreted by courts accordingly. Yet other possibilities are open. At the time of the first negotiations for the Berne Convention, the British and French delegations debated moral rights. The French took the position that moral rights are crucial, as they are at the heart of the French system of authorial rights, droit d’auteur. The British objected, arguing that British courts would not readily interpret the phrases associated with the French right, including respect of the spiritual, mental and intellectual aspects of an author’s work. The British finally agreed (at the Revision Conference of Rome in 1928) to include a moral rights provision in the Berne Convention, upon the French agreement to include the phrase limiting the right to protection against prejudice to “honor or reputation.” The UK took the position that it could meet its obligations under the Berne Convention without the need to introduce a new cause of action into its domestic laws.88 The British presumed that its courts would interpret that phrase to refer to authorial reputation, as in libel law.89 The interpretation of the meaning of “honor” in moral rights’ protection varies. The World Intellectual Property Organization (“WIPO”) interprets the integrity right as a protection of reputation.90 UK courts have indeed interpreted moral rights to protect authorial reputation.91 The Irish Act takes this approach as well,92 as does the New York Act.93 In the US, VARA is largely interpreted as a protection of reputation.94 The extent to which the French moral right protects authorial reputation is in dispute.95 Yet other approaches are apparent. In Snow v The Eaton Centre the Canadian Court recognized that the integrity right “gives rights greater than those based on libel or slander.”96 Commentators in other jurisdictions have associated the integrity right with a protection of dignity.97 In Israel, the moral right of integrity has been associated by some courts with dignity (kavod) upon Israel’s Basic Law of Human Dignity and Liberty.98 It is submitted that in the phrase “honor or reputation,” the former term “honor” can be taken to indicate the internal aspect of human dignity. The latter term “reputation” signifies the external, social aspect, in accord with the earlier understanding of “honor.”99 The integrity right’s protection of authorial “honor” can be deemed to respect authorial dignity. Kant’s proposition that autonomy grounds dignity illuminates this relation, as indeed the integrity right protects autonomy. The necessary link between autonomy and dignity impacts the nature of the evidence that the integrity right requires a plaintiff to bring for an award of damages. There is no need to prove reputational injury, where “honor” is understood as dignity. Moreover, because the integrity right protects an author’s autonomy, when an author’s integrity right is infringed, her autonomy is violated. A violation of autonomy is necessarily a disrespect of dignity. That result is direct.

178 Positive Freedom in Expression Hence there ought to be no additional requirement for the author to prove prejudice in accordance with the integrity right’s provision regarding “prejudice to honor or reputation.” Indeed, the Berne Convention’s Article 6bis indicates that an infringement of the integrity right is when a modification “would be prejudicial,” rather than where it is proven to be so. The statutory phrase can be understood to underscore the necessary relationship between distortion and prejudice, rather than signifying a requirement of proof of that prejudice. Per se damages may be understood to follow. Once a distortion of expression is proven, injury to dignity necessarily follows the disrespect of autonomy, and further proof of injury should not be required.100 Under Canadian law, where there is distortion, mutilation or other modification of a painting, sculpture or engraving, prejudice is “deemed to have occurred.”101 In Israel, courts may consider actual injury in assessing the measure of damages under Israel’s Copyright Act 2007 (§56(4)). Yet in Weinberg v Weishopf, the Israeli Supreme Court in my view improperly conditioned an integrity right claim on a showing of actual prejudice, rather than the possibility of prejudice.102 An unnecessarily high burden was placed on the plaintiff-artist that harm must be proven. Rather than establishing a requirement for proof of injury, an objective/subjective test ought to be used to determine whether prejudice would follow a modification. Indeed, an Israeli District Court has ruled that the modification of a work may be actionable only if judged unreasonable on an objective review of the author’s subjective reaction to it.103 C. Rights of Expression for All Authors A further insight that can be gleaned from Kantian and Jewish principles of positive freedom helps to identify who is an author. The autonomy of expression of all authors must be respected. Expressive works are recognized as intertextual, in Jewish thought and Kantian theory, as well as upon approaches in contemporary thought. Creativity functions intertextually through copying and changing what came before. Authors work together, relying upon and inspiring each other. All authors, those who precede and those who follow, are to be respected. Hence the choice of agency and moral rights are to be upheld for all creative express-ors. 1) Intertextuality A. KANT

Authors who modify the books of previous authors are to be respected. In the Essay, Kant writes that when a subsequent author changes a prior work, that author carries on with the public a different affair from the first. The subsequent author therefore does not interfere with the affair with the public of the first author; the subsequent author does not represent himself to be speaking through the first author.

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A modified work is to be attributed to the subsequent author. When a work is modified or transformed, the work becomes the speech of another: If someone so alters another’s book (abridges it, adds to it, or revises it) that it would even be a wrong to pass it off any longer in the name of the author of the original, then the revision in the editor’s own name is not unauthorized publication and therefore not impermissible.104 Kant affirms the copying and changing of previous works in the arts. The method of learning of the arts is through imitation; it is rather “aping” that is to be avoided. Even genius breakthroughs react to tradition. The second genius is aroused by the first genius to a feeling of his own “individuality” and “originality.” The creative spark that animates genius comes into play for the second creator, who goes on to set his own rules.105 B. JUDAISM

In Jewish tradition, authors modify each other’s works – and even those of God. Intertextuality is apparent in the Bible and Talmud. In creative expression, the work of previous creators is relied upon: it supplies an inspiration, and influences the later creator who copies and changes it. Respect is to be shown to each author. Humans are to modify the world that God has created. Divine creation of the world is said to be in partnership with humankind, who is charged with completing the creation, and fixing the world (tikkun olam).106 Transformation is an essential part of human creativity. Humankind is to “transform the domain of chaos and void into a perfect and beautiful reality.”107 A paradigmatic example of intertextuality in human creativity in the Bible is the construction of the portable Tabernacle that the Jews carried in their wanderings in the desert after their exodus from Egypt.108 The biblical account tells that Bezalel, the chief artisan, was endowed with “wisdom, understanding and knowledge.”109 Wisdom (chochmah) is what one learns from others, and from experience in the world.110 Bezalel’s wisdom allowed him to receive wisdom from others. Also the chief artisan of King Solomon’s Temple is described as having the same three gifts.111 The three terms indicate that human creativity involves human initiative in transforming internally the lessons learned from God’s instruction and from the wisdom of others. The interpretation of divine law in halacha involving the work of one building upon that of another comes forward from the analysis in Part I. The Talmud records discourse among generations of rabbis from different periods and in different locales. A page of Talmud is structured as a single text surrounded by concentric layers of commentary and commentary on commentary. Works of creativity rely upon what preceded them. An example from modern Israeli art is the use and reuse of biblical images in the photographic work by Adi Nes entitled “Bible Stories.”112 Acknowledgment of the transformative use of others’ work came from Israel’s first Prime Minister when he was asked if he could have done

180 Positive Freedom in Expression all of the work involved in creating the State of Israel by himself. David Ben Gurion answered that just as Einstein made it clear to him that the scientist analyzed and brought conclusions from experiments that other people performed, so too Ben Gurion could not have done all of the work of state-building on his own.113 C. CONTEMPORARY THOUGHT

The insights from Kantian and Jewish thought recall contemporary ascriptions of creativity in reliance on others. Contemporary postmodern analyses recall the ageold traditions of the transformation of cultural works. Authors and artists make copies of, and changes to, prior creative works. They rely on and inspire others. In Newton’s famous words, creators stand upon the shoulders of giants. Original works are not created tabula rasa: “the beginning when there was nothing is long gone.”114 The reliance in creativity upon borrowing from the past is present in all of the art forms – whether literary, musical, visual or other, including adaptations of a work from one genre to another.115 The literary works of Hans Christian Andersen, for example, were based on stories told around him,116 and Shakespeare’s plays based on history and popular tales.117 With digitalization and the placement of creative works on the internet, intertexuality is multiplied. The argument is brought by postmodern scholars that all works are copies. Relying upon Foucault,118 postmodern scholars call original authorship a myth and critique authors’ rights of control over original works. As every work is posited a copy, with nothing original, it is argued that an “author” should not enjoy protection of expression.119 In fact, the postmodern argument that everything is a copy is perhaps not so new. In addition to Kant’s calling imitation the learning of art, on the classical preRomantic mimetic view of art, art was considered a copy in a number of senses. For Plato, artworks are a reflection of objects in the world which are themselves a reflection of forms, which have a higher level of reality (Republic x). Later, an original visual work depicting nature was deemed a reproduction of nature. For the Romantics, a literary work was deemed a copy of what was in its author’s mind.120 The postmodern view can indeed be used to recall the influence of each upon another. All creativity is transformative. Hence all authors are to be respected. The postmodern focus on intertextuality in fact effectively recalls the need to protect authors’ rights broadly. Yet the postmodern view of the deconstruction of the self is not applicable. The notion of the self has withstood a rise and fall in philosophical thought.121 The self today is central and perhaps, in the contemporary age of subjectivity, is valued even more highly than in the past. In particular, with regard to creative expression, the self both follows and inspires the other. Both the self and the other are to be affirmed. Not only does the individual creator absorb from outside, but the reverse direction is also true, as is at the heart of Kant’s view: for example, a genius gives rise to a school for other clever minds.122 Intertextuality abounds.

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It is submitted that all authorship should be recognized as transformative, and protected. The leveling down and leveling up of the concept of honor to dignity discussed earlier is applicable here as well. Each author is a transformer, upon a democratic leveling down. Moreover, upon a democratic leveling up, the so-called user/modifier is an author. All authors deserve protection. In sum, modifications to prior works are to respect the prior work and prior author. Such respect is demanded upon an ethic of communication. It is required as well by the law’s permitting the author to control the form and content of their work. The modified work and modifying author are also to be respected. How does the law attempt to draw the line between the works? 2) The Law Copyright doctrine acknowledges the intertextuality of works and expressive creators. The law in some jurisdictions has deemed the defense of fair use a right. The right of fair use, as well as fair change, must indeed be acknowledged. Transformative use is also a right that should stand for all creators. The objectivesubjective test of the “reasonable reader” may be used to determine transformative use. A. FAIR USE AND FAIR CHANGE

Fair use has been provided as a defense to copyright claims of infringement. Fair use is not only excused by the law, but is a non-infringing use wholly authorized by the law. A number of courts have called the fair use of works in copyright not only a defense, but indeed a right, such as in the prominent Canadian ruling CCH. 123 This shift may portend a shift in the burden of proof from the fair useclaimant to the copyright owner opposing the defendant’s fair use claim, and damages in place of injunctive relief for a copyright owner.124 In US law, the fair use defense acknowledges that uses for purposes of criticism, comment, news reporting, teaching, scholarship or research may not constitute copyright infringement. The provision then lists four factors for courts to consider in determining whether copying a work in copyright constitutes fair use: 1 2 3 4

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work.125

Fair use has been declared a right by courts in certain US jurisdictions. In Lenz v Universal Music, 126 the defendant-music corporation opposed the 29-second home video that a mother placed on YouTube of her young children dancing to a

182 Positive Freedom in Expression song composed by Prince. The music company sent a takedown notice of the video, and the mother filed suit. The Court ruled in favor of the mother, and called fair use a right. 127 The Court called the copyright owner’s consideration of fair use a duty. 128 A copyright holder must have a subjective good faith belief that the use was not fair use authorized by law, before sending a takedown notice.129 The Court in Lenz held that affirmative steps to consider fair use. Evidence must be brought to show such consideration.130 As seen earlier regarding dignity (Chapter 4) and regarding the law (Introduction to Part II), affirmative respect indeed requires affirmative behavior. Consideration of fair use shows concern, and intentional acts upon such consideration renders the steps affirmative. Fair use is also present as a defense in response to a claim of infringement of moral rights pursuant to the US law, VARA.131 The application of the fair use defense to moral rights claims has been criticized: VARA applies only to original visual artworks, and it has been asked: what use could be considered fair for the modification of an original work?132 Israel’s Copyright Act 2007 (§19) also includes fair use as a defense. Israel’s Supreme Court has indicated that fair use may possibly be deemed a right.133 While the statute does not specify that fair use is a defense to a claim of infringement of the moral right, a challenged modification to a work was called, by a District Court in Katz v Rotman, a fair change. 134 Indeed, a modifier may well be an author. The right of expression of the defendant-creator requires applying a test of fair change to modifications. The Israeli statute (§50) includes a reasonableness defense to claims of infringement of the moral right of integrity, wherein the first two factors for court consideration resemble the first two factors for court consideration of fair use. B. TRANSFORMATIVE USE

The central element of US fair use doctrine is said to be the transformative use defense.135 The first factor of the fair use test pursuant to the statute (§107) asks a court to examine the purpose of the defendant’s use of the copyrighted work. If that use is found to be transformative, the defendant’s claim of fair use is generally upheld. The US Supreme Court set forth the transformative use defense to copyright in Campbell v Acuff-Rose, 136 involving the parody by the rap group 2 Live Crew of Roy Orbison’s 1960s song “Oh, Pretty Woman.” The Court indicated that the purpose of copyright to promote science and the arts would be fulfilled by protecting authorial works which copy a primary work with a transformative purpose.137 The Court recalled Justice Story’s understanding that in literature, art and science, nothing is truly new.138 The Court further cited Judge Leval, who wrote that: all intellectual creative activity is in part derivative. There is no such thing as a wholly original thought or invention. Each advance stands on building blocks fashioned by prior thinkers.139

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The transformative use defense has been upheld, for instance, in a case involving the use of Grateful Dead photos for historical rather than artistic purposes.140 Protection was offered to the transformative use of the story of “Gone with the Wind” in what was termed a parodic book entitled “The Wind Done Gone,” written from the perspective of slaves.141 In holding the digitization of copyright works to be transformative use, the Appeals Court underscored the use by endusers of the program and its usefulness in society.142 Other jurisdictions apply what may be perceived as a form of a transformative use analysis, without referring to it as such. In the UK, copyright’s substantial similarity test affords such a method. In Designers Guild v Russell Williams (Textiles), Lord Scott essentially acknowledged transformative use in ruling that with altered copying, if “the alterations are sufficiently extensive it may be that the copying does not constitute an infringement at all.”143 In Israeli case law, the transformative use defense has been recognized in copyright doctrine by the Supreme Court.144 Moral rights claims of infringement have also been defended with an argument resembling transformative use. UK courts have protected modifications on what may be termed a minimal-maximal test. An example is the protection of maximal modifications where the Appeals Court described the process of mixing music as one which results in a “new work.”145 Nor is infringement found where modifications are minimal such as changes of color and size of a visual image,146 or so “trivial” as to render the comparison of the plaintiff’s and the defendant’s works as the subject of a Spot the Difference competition.147 Only modifications falling into a middle ground are found infringing.148 Similarly, a number of Israeli courts have protected what has been deemed a transformative modification, following the holding in Katz v Rotman which called a modification a fair change. In a case involving the copying of parts of a series of books, the use of the prior work was protected insofar as it was considered to result in an “additional independent work.”149 A court referred to the Jewish law ruling that a robber who has made a change in stolen property is exempt from restitution in holding that the changing of a prior work may not constitute copyright infringement.150 Moreover, the Israeli statutory law’s reasonableness defense to claims of moral rights infringement allows courts to consider the purpose of the use of the prior work, in a fashion similar to the fair use factor which has given rise to the transformative use defense. How do US judges make the evaluation of transformative use? In Campbell, the Supreme Court held that regarding the first fair use factor – the “purpose and character of the use” – an important aspect of the inquiry is whether the new work adds “new expression, meaning, or message.”151 A new expression recalls copyright doctrine’s ruling that an idea may not be protected in copyright, but only its expression. Interestingly, Kant’s reasoning in his Essay reflects the idea/expression dichotomy: a primary author cannot prevent the publication of a subsequent work where that subsequent work has altered the primary work, as the modified work “is not the same speech of the author, even though the thoughts might be precisely the same.”152 Kant also approves the

184 Positive Freedom in Expression notion behind the transformative use defense when he supports the author modifying a prior writing. The message of a communication is presented by the sender. Protection of a new message supports copyright doctrine’s protection of authorial expression. Moreover, the moral right of integrity safeguards the presentation of an author’s intended message. A work’s meaning is understood by the readers who receive it.153 A “reasonable reader” test indeed has been used by numerous courts to determine the meaning of works in copyright cases. C. MEANING AND THE REASONABLE READER

The transformative use defense (or rather, right) is deemed to safeguard giving a new meaning to a work in copyright. In Campbell the change of meaning in the prior work resulting from the defendants’ rap music was deemed to be a transformative use: the Court called defendants’ rap music “a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”154 Changes to the meaning of a work may meet with resistance. Marcel Duchamp’s readymades, described by the artist as creating a “new thought for the object,”155 were rejected by many in the art establishment when they were first created in the beginning of the last century. Christo’s art project The Gates was installed in Central Park in New York City in 2005, but had been rejected when proposed 20 years earlier because of the change of meaning it would bring to the Park, itself deemed a work of art.156 A recent test was the placement of the sculpture Fearless Girl facing the famed sculptor Charging Bull in New York City’s financial district, rejected by the Bull’s sculptor in part because in his view it changed the meaning of the Bull.157 Kantian and Jewish thought point to the evolution of meaning of a work, and the role of the reader in determining that meaning. In Kant’s words: “it is not at all unusual to find that we understand [an author] even better than he understood himself, since he may not have determined his concept sufficiently. …”158 Also in Jewish tradition, the reader is taken to lend meaning. The Bible teaches that all of the Jewish people stood at Sinai (Exodus 19:8, 20:14), each with their interpretation of the words of the law, as seen in Chapter 3. In interpreting God’s law, “de facto, the rabbis gave the reader-interpreter great leeway in shaping the meaning of a text.”159 The strong emphasis in Jewish tradition on the audio points to the recipient of a work. The Hebrew term for meaning (“mashmaut”) has as a linguistic root the term for hearing (“shema”), indicating the reader’s role in defining and advancing meaning. Indeed, meanings ascribed by readers must be allowed to change. Meaning is in the eye of the beholder. In postmodern literary criticism, it has become widely accepted that the meaning of a text evolves through its readers’ interpretations – and those readers are multiple. Roland Barthes is an early thinker who put this forward,160 and many have followed in his footsteps.161 Contemporary

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hermeneutic and aesthetic theories understand readers’ evolving interpretations of a work to shape the work’s meaning. The same reasoning used in art theory has been used in copyright doctrine.162 Courts look to the “reasonable reader” to determine the change of meaning upon the transformative use of a work. In a copyright case involving appropriation art, a Circuit Court inquired after a reasonable reader’s view of meaning. The Court asked how the works “may ‘reasonably be perceived,’” and held that “[w]hat is critical is how the work in question appears to the reasonable observer.”163 The role of the reader comes forward also with respect to visual art. Viewers’ perception was put into focus when a Circuit Court upheld as transformative the parodic use of Annie Leibovitz’s photo of Demi Moore by Paramount Pictures for a film promotion with Leslie Nielsen: [T]he ad is not merely different; it differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the undue self-importance conveyed by the subject ....164 Also beyond the purview of copyright, the reader and viewer are in focus regarding expression. In a First Amendment case regarding the placement of a public monument, the Supreme Court discussed extensively the changing of meanings of works according to readers’ and viewers’ interpretations.165 In a case involving a petition to join a parade, the Court looked to the audience’s likely reaction to the petitioners’ participation.166 The Court deemed a Ku Klux Klan march to be a threat, given the perception of such marches throughout American history.167 In a claim of libel, the Court inquired whether a reasonable reader would understand that the expression at issue was a satire.168 In other jurisdictions as well, a work’s meaning has been allowed to change. In the UK, an Appeals Court examined the meaning of the modification to a rap superimposed upon garage music. The Court described it as a “faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as ‘mish mish man’ ….”169 It was held that meaning is not necessarily fixed and singular, but is open to different interpretations. In another copyright and moral rights case, the Court cited an earlier decision in finding “the ‘one meaning rule’ strange.”170 In Israel, the changed meanings of works have arisen for debate in a number of copyright and moral rights cases. In considering the copyright claim against the parody of a children’s book, the District Court referred to the understanding of the work by the reasonable child reader.171 In some moral rights cases courts have explicitly left the ascertainment of meaning to the readers of a work. Where the representation of a peace song as a song of war was in dispute, the Court ruled that a test of the reasonable reader’s view of the meaning of the song would be taken.172 In other moral rights (and libel) cases, courts used an objective reasonable reader test to determine the meaning of the expression.173 The social construction of the meaning of works is put forward by the Supreme Court in other intellectual property cases as well.174

186 Positive Freedom in Expression The right of transformative use including changes to the meanings of works is to be strengthened. Rather than offering a monopoly on meaning, copyright and moral rights law must allow creativity, which relies on developments in the meaning of works. Further insights that can be gleaned from the norm of positive freedom and from Kantian and Jewish thought are the significance of duties of respect, which are not only correlative but also intrinsic to rights. D. DUTIES

Duties to respect the so-called primary authors’ economic and moral rights were explored above. The use and modifications of prior works are to be done with respect and integrity.175 Also duties towards subsequent authors in the creative chain have been reviewed. The rights of so-called primary authors are to be respected by subsequent authors (so-called users), and vice versa. Duties are correlative to rights, yet also intrinsic to the authors’ rights themselves. Duties of respect may be reflected in legal rules requiring the consideration of fair use, good faith, and the upholding of industry practices. Ethical dimensions are apparent in these rules.176 Duties include the right of respect of fair use and fair change. As stated in Lenz, incumbent upon the copyright holder is the duty of consideration of fair use by others. Good faith in the exercise of rights, or prohibitions on unjust enrichment, may further such requirements in other jurisdictions as well.177 The misuse of one’s own rights is banned as, for instance, upon the French doctrine of abus du droit. Jeremy Waldron points to the responsible use of rights.178 An affirmative duty of respect may be called “fair duty.”179 The right of transformative use gives rise to a duty. If a modifier makes transformative use of a pre-existing work, the subsequent author is treating that prior author as an end, engaging in a public discourse with them. Duties are upheld. Kant’s categorical imperative is upheld. If the previous author fails to allow the subsequent transformative author to communicate in that way, the former is treating the subsequent author as a means rather than an end, in violation of the categorical imperative. The author neglects their duty of respect. Other duties of respect arise from industry custom. Social norms may be devised by parties involved in a regulated activity.180 Courts sometimes consider industry guidelines and practices in setting standards of behavior in copyright claims.181 In turn, industry practices take into account courts’ fair use decisions.182 The notions of fairness and reasonableness in copyright doctrine may be said to reflect duties of respect as well. What is considered to be fair is developed for example in the fairness analysis of the Canadian case CCH. 183 Likewise, reasonableness is deemed of concern by courts in deciding copyright conflicts.184 The Statute of Anne required that a reasonable price for copying be set by the copyright owner.185 A further statutory example is the defense of reasonableness for modifications of authorial works pursuant to the moral right of integrity in the copyright laws of Australia and Israel.186 The reasonableness of the author’s objections to modifications to a work is a requirement in Holland.187 In the arts,

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the importance of responsibility is acknowledged, for instance, by the Rauschenberg Foundation in its statement on fair use.188 E. BALANCE

The rights and duties of respect of and for all authors call for a balance. The freedom of expression of authors, both so-called primary and so-called secondary, is to be balanced. Also to be considered are the duties of respect that each author holds, duties both correlative as well as intrinsic to their rights. Copyright doctrine entails balancing to safeguard users. From within copyright doctrine, the elements of the idea/expression dichotomy, the fair use defense, and the limited duration of copyright ownership are meant to curb excesses of copyright. A balance is to be struck between the First Amendment and the Copyright Act, and between encouraging innovation and advancing the Progress of Science and useful Arts.189 Scholars have called for limitations on copyright from outside the copyright doctrine as well, namely from principles of freedom of expression.190 Rather (or additionally), what is proposed here is an internal balance, but internal to freedom itself. Freedom entails the freedom of an author to express herself, as well as that same author’s duty of respect for others to express themselves. The freedom and duty of all authors is to be recognized, and a balance struck between them. The concept of balance has been critiqued by Drassinower, who views it as relying upon notions of value in a commodified market.191 Yet the freedom of expression of both sides to a copyright conflict is in his view to be protected as well. Moreover, rather than being rejected as too vague a solution, balance is a well-known judicial method.192 A balance of the rights and duties of all prior and subsequent authors, of readers, and of the public enter the inquiry.193 Rights and duties are bilateral. The bilateral nature of rights of authorship is analyzed regarding copyright by Drassinower, and regarding private law generally by Ernest Weinrib. Both use a Kantian analysis.194 In this study Kantian theory is used to show the correlativity as well as the intrinsic relation of bilateral rights and duties, upholding the autonomy of expression of all authors, and also their duty to respect the autonomy of others. Rights and duties are applicable on a horizontal, as well as a vertical plane. Horizontally, private parties ought to be required to consider and possibly to allow subsequent authors to use and modify their works. On the vertical plane, the state should enforce private parties’ horizontal obligations. Macmillan develops justifications for court enforcement of horizontal application to protect expression in the copyright context.195 Israel’s Basic Law provision regarding the protection of the dignity of all (Article 4) sets such a duty upon the state. A state obligation to ensure that speech by subsequent authors is allowed and even enabled, may be debated.196 The social network of communication relies on respect for all individual authors, as well as for the collective itself. Individual authors may work solely, jointly or collectively. Kantian and Jewish thought support for both the individual and communal grouping reflects the affirmation of both the particular and the

188 Positive Freedom in Expression universal. Scholars have explored autonomy and the social self in analyses of intellectual property and copyright.197

IV Conclusion Positive freedom sets forth an ethic of communication calling for the respect of all authors. It is submitted that copyright doctrine may be reformed by viewing authorial rights upon the expression model, wherein the freedom and duties of respect arising between and among authors and the public come to the fore. The freedom and dignity of all authors is to be respected. Economic and moral rights under copyright – rights of production, distribution and use, as well as integrity and attribution – may be viewed within the purview of this ethic. Authors possess an autonomy of expression. A moral philosophy of moral rights demands duties of respect for authorial autonomy of expression and dignity. The moral philosophy inspired by Kantian theory supports copyright’s moral right of integrity to protect authorial autonomy, and hence dignity – and accordingly to interpret the integrity right’s reference to “honor” in that light. Upon positive freedom, dignity requires that respect be received as well as given. The integrity right should be understood to require that respect be shown for authorial honor/dignity, as well as by the author whose autonomy it protects. Authorship is transformative. Respect must be shown to authors whose work is subsequent to that of previous authors. As Kantian and Jewish thought show, all speakers and writers build upon and react to what preceded them. So-called users and modifiers are authors, and their rights are to be protected. On the expression model of copyright, transformative use and transformative modification are defined as a right. Further lessons from the analysis of Part I are apparent. The duty to respect these rights is intrinsic to the rights of the author and copyright owner. A duty of affirmative respect is due, for instance requiring consideration of fair use by a copyright owner. Consideration is an intentional act showing concern and demonstrating affirmative respect. The expression model upholds the rights of each and all individual authors, and also the good: the public benefit of encouraging learning. Earlier the Right and the Good were shown able to function together; here, the contrasting norms of copyright as instrumental (upon the incentive model) and deontological (based on rights and duties) are proposed as able to function together. The law is to cohere with social norms. As Tom Tyler has shown, law is abided by and hence enforceable when it is considered to be legitimate in the popular mind.198 Law must cohere with current, lived norms. Yet the reverse is true as well: people adjust their behavior in line with legal standards. Copyright law should aim to fulfill the norms of society, and further them. As Lawrence Lessig has argued, we are to consider deeply what norms we wish to uphold in the digital age.199 It is suggested that norms ought to acknowledge both the individual and the society: the self, together with the public benefit. The individual right and the societal good can cohere. So too copyright can be understood to stand on both

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deontological and instrumental norms. The right and duties of respect for all authors, and for society, may advance copyright in the modern age. The next chapter continues to explore expression rights and duties upon an ethic of communication following from Kantian theory and Jewish thought. The subject is positive freedom regarding women’s expression in religious worship. A kind of transformativity is present there as well, with the preservation of ancient traditions of respect upon a pluralism of voices.

Notes 1 Abraham Drassinower, “Copyright Infringement as Compelled Speech” in New Frontiers in the Philosophy of Intellectual Property, ed Annabelle Lever (Cambridge: Cambridge UP, 2012); David Lametti, “Laying Bare an Ethical Thread: From IP to Property to Private Law?” in Intellectual Property and the Common Law, ed S Balganesh (Cambridge: Cambridge UP, 2013). A feminist ethical view is set out by Carys Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Cheltenham: Edward Elgar, 2011); Caren Irr, Pink Pirates: Contemporary American Women Writers and Copyright (Iowa City: Univ Iowa, 2010). 2 Neil Netanel, Copyright’s Paradox: Property in Expression/Freedom of Expression (Oxford: Oxford UP, 2016) 15–17. 3 Copyright is termed “instrumental” in the sense of a means to an end. In pursuit of an end, the law could be termed “teleological.” Yet copyright is deemed an instrument, and hence perceived on an instrumental model. 4 Stig Stromholm, “Droit Moral – The International and Comparative Scene from a Scandinavian Viewpoint,” 14 International Review of Intellectual Property and Competition Law (IIC) 1 (1983). 5 Paul Edward Geller, “Must Copyright be Forever Caught between Marketplace and Authorship Norms?” in Of Authors and Origins, eds Brad Sherman and Alain Strowel (Oxford: Clarendon Press, 1994). 6 Kim Treiger-Bar-Am, “Speech, Balance, and a Telos of Respect: Review of Abraham Drassinower’s What’s Wrong with Copying?” 29(1) IPJ 11 (2016). 7 Kim Treiger-Bar-Am, “Copyright, Creativity, and Transformative Use” in Copyright in Creativity: Creative Values, Cultural Heritage Institutions and Systems of Intellectual Property, ed Helle Porsdam (Farnham: Ashgate, 2015). 8 Hurley and S Boston Allied War Veterans Council v Irish American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995) 573. 9 West Virginia State Board of Education v Barnette, 319 US 624 (1943). 10 Miami Herald v Tornillo, 418 US 241 (1974). 11 Wooley v Maynard, 430 US 705 (1977). 12 Ashdown v Telegraph Group [2001] EWCA Civ 1142, [2002] Ch 149 para 31. The Court also looked to the public’s interest in the receipt of information in a particular form, para 43. 13 Jersild v Denmark, Series A No 298 (1995) 19 EHRR 1, para 31. 14 Cohen v California, 403 US 15 (1971). 15 Rosenberger v Rector and Visitors of University of Virginia, 515 US 819 (1995) 833 (citation omitted). See also Hazelwood School District v Kuhlmeier, 484 US 260 (1988); Downs v Los Angeles Unified School District, 228 F3d 1003 (2000). 16 471 US 539 (1985) 558. 17 Geller, “Must Copyright be Forever Caught between Marketplace and Authorship Norms?” in Of Authors and Origins, eds Sherman and Strowel 226. 18 Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience 1760–1911 (Cambridge: Cambridge UP, 1999) 15; ibid 173.

190 Positive Freedom in Expression 19 UN General Assembly, Universal Declaration of Human Rights, 217(III) Paris, 1948. 20 Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986 (London: Queen Mary College Kluwer, 1987) §16.4. 21 Jane C Ginsburg, “A Tale of Two Copyrights: Literary Property in Revolutionary France and America” in Of Authors and Origins, eds Sherman and Strowel. 22 Pamela Samuelson, “Copyright, Commodification, and Censorship: Past as Prologue – But to What Future?” in The Commodification of Information, eds Neil Weinstock Netanel and Niva Elkin-Koren (The Hague: Kluwer Law International, 2002) 68. 23 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard UP, 1993) 11–15. 24 Samuelson, “Copyright, Commodification, and Censorship” in The Commodification of Information, eds Weinstock Netanel and Elkin-Koren. 25 Neil Netanel, “Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation,” 24 Rutgers LJ 347 (1993). 26 Neil Weinstock Netanel, “Copyright and a Democratic Civil Society,” 106 Yale LJ 283 (1996) 288. 27 Fiona Macmillan, “Commodification and Cultural Ownership” in Copyright and Free Speech: Comparative and International Perspectives, eds Jonathan Griffiths and Uma Suthersanen (Oxford: Oxford UP, 2005) §3.08. 28 Sherman and Bently, The Making of Modern Intellectual Property Law 55. 29 David Ladd, “The Harm of the Concept of Harm in Copyright,” 30 J Copyright Soc’y USA 421 (1982) 422; Paul Goldstein, “Copyright,” 55(2) Law & Contemp Probs 79 (1992) 80. 30 Justin Hughes, “The Philosophy of Intellectual Property,” 77 Georgetown LJ 287 (1988) 359. Hughes writes: “Surprisingly, I have not encountered other uses of the freedom of expression rationale in my survey of the literature.” Ibid n295. 31 Michael Spence, “Intellectual Property and the Problem of Parody,” 114 Law Quarterly Review 594 (1998) 609 (expression); Michael Spence, “Justifying Copyright” in Dear Images: Art, Copyright and Culture, eds Daniel McClean and Karsten Schubert (London: Ridinghouse, 2002) 399 (autonomy). 32 Lior Zemer, “Dialogical Transactions,” 95(1) Oregon L Rev 141 (2017). 33 Abraham Drassinower, What’s Wrong with Copying? (Cambridge, MA: Harvard UP, 2016) 111–44. 34 I discuss Kantian theory and copyright in Kim Treiger-Bar-Am, “Kant on Copyright: Rights of Transformative Authorship,” 25(3) Cardozo Arts and Ent LJ 1059 (2008), and Jewish thought and copyright in Kim Treiger-Bar-Am, “The Transformative Authorial Self in Jewish Thought,” 6(2) WIPOJ 149 (2015). Kantian and Jewish views on copyright are compared in Kim Treiger-Bar-Am, “The Philosophy of Copyright: Rights and Duties of Expression” in Interdisciplinary Study of Intellectual Property Law, eds Miriam Marcowitz-Bitton, Lior Zemer (Jerusalem: Nevo 2016) (Hebrew). While to date I have used Kantian moral philosophy and Jewish thought to understand what the integrity right does (protecting autonomy) and to see its ramifications (upholding dignity), in this study these structures of thought are used as moral justifications of the rights and their limits. See also Kim Treiger-Bar-Am, “The Moral Limits to Moral Rights” in The Moral Boundaries of Intellectual Property, eds Michael Birnhack and Or Cohen-Sasson (S Horowitz Institute of Intellectual Property, 2018) (Hebrew). 35 Immanuel Kant, “On the wrongfulness of the unauthorized publication of books” (1785) in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996). 36 Geller, “Must Copyright be Forever Caught between Marketplace and Authorship Norms?” in Of Authors and Origins, eds Sherman and Strowel 169. 37 Immanuel Kant, Critique of the Power of Judgment, eds Paul Guyer and Eric Matthews (Cambridge: Cambridge UP, 2000) §46, 5:307–8.

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38 Essay 8:82. Scholars who focus on this aspect of the Essay are referenced below. 39 Robert P Merges, Justifying Intellectual Property (Cambridge, MA: Harvard UP, 2011) 78; ibid 156 (dignity); ibid 18, 195 (autonomy). The Essay supports the principle that “the author alone may determine whether and how his words are to be disseminated.” Neil Netanel, “Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law,” 12 Cardozo Arts & Ent LJ 1 (1994) 17. 40 Essay 8:80 (emphasis omitted); see also ibid 8:83–4, 8:86, 8:81*. 41 Essay 8:85–6. 42 Plato, Republic x. Visual art is connected with beauty and measure, poetry with madness and inspiration. Monroe C Beardsley, Aesthetics from Classical Greece to the Present: A Short History (New York: Macmillan, 1966) 45, 105, 159–61. 43 Leonardo Da Vinci, “Paragone” in The Literary Works of Leonardo Da Vinci, ed Jean Paul Richter, 3rd ed (London: Phaidon, 1970) (1883). 44 Critique of Judgment §49, 5:314–5; §53, 5:326. 45 Ibid §53, 5:329. 46 GWF Hegel, Philosophy of Right, trans TM Knox (Oxford: Oxford UP, 1967) 68. 47 Indeed, in early copyright law, it was “printing” that was prohibited, rather than “copying” in the sense of imitation. Stina Teilmann, “On Real Nightingales and Mechanical Reproductions” in Copyright and Other Fairy Tales: Hans Christian Anderson and the Commodification of Copyright, ed Helle Porsdam (Cheltenham: Edward Elgar, 2006). 48 Critique of Judgment §49, 5:317; §50, 5:320; §51, 5:323 (the art of painting communicates form, rather than the concept communicated in writing); §53, 5:328–9 (tone communicates form). 49 Ibid §51, 5:319. 50 Essay 8:80–1 (emphasis omitted). 51 Essay 8:86 (emphasis omitted). 52 Essay, 8:81–2. 53 Ibid 8:80 (will); ibid 8:87 (revisions). 54 Immanuel Kant, Essays and Treatises on Moral, Political, and Various Philosophical Subjects, ed & trans William Richardson, vol 1 (Bristol: Thoemmes, 1993) (1798) 236. 55 MM 6:429. Kant continues that telling a lie “is thus a renunciation by the speaker of his personality.” See also Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) [“GMM”] in Practical Philosophy 4:429–30 (on deception and false promising). On Kant and lying, see Maurizio Borghi, “Copyright and Truth,” 12(1) Theoretical Inquiries in Law (2011). Kant’s position on truth is further discussed in Chapter 6. 56 I submit that even without attribution to the author, offence to authorial autonomy and dignity can arise from a non-transformative modification that distorts the author’s expression. Anonymous expression is rightfully protected under US copyright law, 17 USC §302(c) (2007), as well as the free speech doctrine, McIntyre v Ohio Elections Commission, 514 US 334 (1995). 57 Exodus 20:3–4; Lionel Kochan, Beyond the Graven Image: A Jewish View (New York: NY UP, 1998) 101, 103. The Second Commandment condemns not artistry but idolatry. In Chapter 1, Herman Cohen’s reformulation of the Second Commandment was described: “Thou shalt make no image of the moral subject.” Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 220. 58 Ze’ev Falk, Intellectual Property Law in Israeli Law: Sources and Inquiries in Authors’ and Inventors’ Rights (Jerusalem: 1947) (Hebrew) 12–13. 59 Ibid 20–2. See also Neil Weinstock Netanel, “Maharam of Padua v Giustiniani; the Sixteenth-Century Origins of the Jewish Law of Copyright,” 44 Houston L Rev 821 (2007).

192 Positive Freedom in Expression 60 Nahum Rakover, Copyright in Jewish Sources (Jerusalem: Jewish Legal Heritage Society, 1991) (Hebrew) 67–74. 61 Neil Weinstock Netanel and David Nimmer, From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print (New York: Oxford UP, 2016). 62 Moshe Weissman, The Midrash Says (New York: Bnei Yakov Publications, 1980) 45–6. This tale is related to moral rights in copyright doctrine in Roberta Rosenthal Kwall, The Soul of Creativity: Forging a Moral Rights Law for the United States (Stanford: Stanford UP, 2010). 63 Rakover, Copyright in Jewish Sources 41–2. 64 Gad Tedesky, “Intellectual Property and Personal Rights,” 10 Mishpatim 392 (1980) (Hebrew) 403. 65 Ethics of the Fathers 1:11. 66 Ethics of the Fathers 6:6. 67 BT-Megillah 15a (R. Hanina). 68 Rakover, Copyright in Jewish Sources 18–19. 69 Ibid 113–15 (the Sages deride dressing in a tallit [prayer shawl] not one’s own); ibid 40–2. 70 BT-Shavuot 19b. For analysis of the Talmudic debate, see Rakover, Copyright in Jewish Sources 23–5. 71 Views expounded in the Jerusalem Talmud and Babylonian Talmud may be compared. Ibid 26. The Talmudic practice of attribution may be best associated with collective traditions rather than individual authorship. Sacha Stern, “Attribution and Authorship in the Babylonian Talmud,” 45(1) Journal of Jewish Studies 28 (1994). 72 Rakover, Copyright in Jewish Sources 54–6. 73 Essay 8:85–6. 74 Mark Rose, “The Author in Court: Pope v. Curll (1741),” 10 Cardozo Arts and Ent LJ 475 (1992); Sherman and Bently, The Making of Modern Intellectual Property Law 47–52; Robert H Rotstein, “Beyond Metaphor: Copyright Infringement and the Fiction of the Work,” 68 Chic-Kent L Rev 701 (1993) 730–1 (critiquing the shift from action to object, but calling for a return to action as perceived in the audience). 75 Carys J Craig, “Putting the Community in Communication: Dissolving the Conflict between Freedom of Expression and Copyright,” 56 U Toronto LJ 75 (2006) n63; Drassinower, What’s Wrong with Copying? n31. 76 Essay 8:82. Kant’s interest in protecting publishers was a means of protecting the marketplace as the communication network for discourse. Geller, “Must Copyright be Forever Caught between Marketplace and Authorship Norms?” in Of Authors and Origins, eds Sherman and Strowel 168. The Essay is seen as regarding economic copyright (Caroline Nguyen, “Toward an Incentivized but Just Intellectual Property Practice: The Compensated IP Proposal,” 14 Cornell JL & Pub Pol’y 113 (2004) n101) and the rights of publishers (Daniel Burkitt, “Copyrighting Culture: The History and Cultural Specificity of the Western Model of Copyright,” 2 Intell Prop Q 146 (2001) n24 (citing Stromholm [citation omitted], and offering an alternative view)). 77 Norowzian v Arks [1998] EWHC 315 (Ch). The decision was reconsidered on appeal at Norowzian v Arks and Guinness Brewing Worldwide (No 2) [1999] EWCA Civ 3014 (CA). 78 Creation Records v News Group Newspapers [1997] EMLR 444 (Ch). 79 Cohen v G & M Realty, 320 FSupp 3d 421 (2018). 80 Ricketson, The Berne Convention for the Protection of Literary and Artistic Works §8.93; David Vaver, Copyright Law (Toronto: Irwin Law, 2000) 158. 81 Leslie Kim Treiger-Bar-Am, “The Moral Right of Integrity” in New Directions in Copyright Law, ed Fiona Macmillan vol 2 (Cheltenham: Edward Elgar, 2006). 82 Zemer, “Dialogical Transactions,” 95(1) Oregon L Rev at 187. 83 Rosenthal Kwall, The Soul of Creativity 4–5, 144.

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Berne Convention for the Protection of Literary and Artistic Works (1886) (Article 6bis). Snow v The Eaton Centre [1982] 70 CPR 2d 105. See for example Amy Adler, “Against Moral Rights,” 97 Calif L Rev 263 (2009). VARA 17 USC §106A(a)(3)(A)–(B). Ricketson, The Berne Convention for the Protection of Literary and Artistic Works §§8.93–100. For a comparative and historical view of the phrase adopted in the Berne Convention, see Elizabeth Adeney, “The Moral Right to Integrity: The Past and Future of ‘Honour,’” 2 IP Quarterly 111 (2005). Eventually the UK accepted that its libel laws provided insufficient protection of moral rights and failed to meet the UK’s obligation under Berne, insofar as libel law protects a person’s reputation until their death, while the protection pursuant to the moral right is to endure for 70 years following the death of the author. Whitford Report of the Committee to Consider the Law on Copyright and Designs (Cmnd 6732, March 1977) §§50–7, 85(vi). WIPO Guide (1978) 42. See also WIPO Performances and Phonograms Treaty. Pasterfield v Denham [1999] FSR 168; Tidy v Trustees of the Natural History Museum [1995] 39 IPR 501 (Ch); Confetti Records v Warner Music UK [2003] ECDR 31; British Phonographic Ind v Mechanical-Copyright Protection Society (no 2), Copyright Tribunal, 1 Nov 1991. Irish Copyright and Related Rights Act 2000 §109(1). New York Arts and Cultural Affairs Law §14.03 (McKinney’s). Carter v Helmsley-Spear, 71 F3d 77 (2nd Cir 1995) 83, cert denied 517 US 1208 (1996); House Report on VARA, HRep No 514, 101st Congress, 2nd Sess 1 (1990), reprinted in 1990 USCCAN 6915 and 6925–6, at 15–16; Justin Hughes, “The Personality Interest of Artists and Inventors in Intellectual Property,” 16 Cardozo Arts & Ent LJ 81 (1998); Kathryn A Kelly, “Moral Rights and the First Amendment: Putting Honor Before Free Speech?” 11 U Miami Ent & Sports L Rev 211 (1994) 216, 232; Geri J Yonover, “The ‘Dissing’ of Da Vinci: The Imaginary Case of Leonardo v Duchamp: Moral Rights, Parody and Fair Use,” 29 Valparaiso UL Rev 935 (1995) 937, 1000. Ginsburg describes the integrity right as protecting the public’s identification and recognition of the author. Jane Ginsburg’s Statement at Congressional hearings on VARA, cited at VARA House Report 14, reprinted in 1990 USCCAN 6924 (rights to recognition). Paul Edward Geller, “Copyright History and the Future: What’s Culture Got to Do with It?” J Copyright Soc’ty USA 209 (2005) 232; Stina Teilmann-Lock, “Justifications for Copyright: The Evolution of le droit moral” in New Directions in Copyright Law, ed Macmillan, vol 1 (2005). Snow v The Eaton Centre [1982] 70 CPR 2d 105, 106. Edward J Damich, “The Visual Artists Rights Act of 1990: Toward a Federal System of Moral Rights Protection for Visual Art,” 39 Cath U L Rev 945 (1990) 982; Roberta Rosenthal Kwall, “Author-Stories: Narrative’s Implications for Moral Rights and Copyright’s Joint Authorship Doctrine,” 75 S Cal L Rev 1 (2001) 23–5 & n100 (spirit and dignity); Ilhyung Lee, “Toward an American Moral Rights in Copyright,” 58 Wash & Lee L Rev 795 (2001). Yet these writers often interpret the right in accord with other interests as well, including reputation, privacy and personality. Damich, “The Visual Artists Rights Act of 1990” 980 (personality), 995 (emotions); Lee, “Toward an American Moral Rights in Copyright,” 58 Wash & Lee L Rev at 801, 840, 845 (personality), 825–8 (privacy), 815, 850, 853 & n112 (emotions). CC 977/86 Tau v The Technion (DCt Haifa) (3)89 PM 5752 (on the integrity right); CA 2445/04 Rotblit v Bermag-Life (Magistrate’s Ct Kfar-Saba) (on moral rights); CA 75851/04 Dorfman v YNET (Magistrate’s Ct TA) para 53 (on the attribution right); CA 43688/06 Rubinger v Walla, (Magistrate’s Ct TA) para 20 (affidavit Prof. Asa Kasher) (on the integrity right). See also Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights (Jerusalem: Nevo, 2014)

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99

100 101

102 103 104 105 106 107 108

109 110 111 112 113 114 115 116 117 118

(Hebrew) 539. Courts have affirmed that “honor” can take on an external meaning of social character, as well as an internal meaning akin to human dignity. CA 6871/ 99 Rinat v Rom, IsrSC 56(4) PD 72 (2002) paras 17–18 (the right to reputation and to free speech are both fundamental rights arising from dignity); CA 1506/06 De’lal v Ha’aron (Magistrate’s Ct Haifa) (4 June, 2008). Israel adopted moral rights in 1981 by amendment to its Copyright Ordinance 1924 (§4a), and now protects moral rights under the Copyright Act 2007 (§§45–6). Leslie Kim Treiger-Bar-Am, A Right of Autonomy in Expression: Section 80 of the Copyright, Designs, and Patents Act (1988) (DPhil thesis, University of Oxford, 2006) (on file with author). I thank Dr Michael Spence for his dedicated and thoughtful supervision of my thesis. Treiger-Bar-Am, “The Moral Right of Integrity” in New Directions in Copyright Law, ed Macmillan, vol 2. Canadian Copyright Act RSC 1985, c C-42, §28.2(2). Per se damages for harm to dignity are discussed in Law v Canada [1999] 1 SCR 497. Vaver presumes this is a rebuttable presumption, citing cases which required objective evidence of prejudice after the “deemed” language was added to the Canadian statute. Vaver, Copyright Law 163. CA (Request for Appeal) 7774/09 (28 August 2012). CC 977/86 Tau v The Technion. Essay 8:86–7. Critique of Judgment §49, 5:318; §47, 5:307–9. BT-Shabbat 119b (R. Hamnuna), on Genesis 2:1; Genesis Rabbah 1:10; Avivah Gottlieb Zornberg, Genesis: The Beginning of Desire (Philadelphia: Schocken, 1995) 36. Joseph B Soloveitchik, Halakhic Man (Philadelphia: Jewish Publication Society, 1983)106 (and on perfecting the world, 105). Extensive parallels are drawn between the biblical narratives of creation of the world and construction of the Tabernacle, called a microcosm of existence. Yalkut SheminiProverbs 3:19–20. See Nehama Leibowitz, Studies in Shemot (Book of Exodus) in the Context of Ancient and Modern Jewish Bible Commentary (Part 2: Mishpatim & Pekudei), trans and adapted Aryeh Newman (Jerusalem: World Zionist Organization, 1976) (Hebrew) 475–82, 658–9, 647; Avivah Gottlieb Zornberg, The Particulars of Rapture: Reflections on Exodus (New York: Doubleday, 2002) 478 (linguistic analogies). Exodus 31:2–3, 35:30–1. Etz Hayim, eds Leiber et al (Rashi’s commentary on Exodus 35:31). 1 Kings 7:14 (the portion from the Prophets read on the Sabbath following the reading of the account of Bezalel’s work). Yigal Zalmona, A Century of Israeli Art (Jerusalem: Israel Museum, 2013) 450–1 (illustration and description of “Biblical Stories” (2004)). Recorded in the documentary film Epilogue, and reported in Ofer Aderet, “Two Filmmakers Scoured the Globe for Last Ben-Gurion Interview Before Finding it in Israeli Desert,” Haaretz (Feb 28, 2017). Nelson Goodman and Catherine Z Elgin, Reconceptions in Philosophy and Other Arts and Sciences (Indianapolis: Hackett, 1988) vii. Leslie Kim Treiger-Bar-Am, “Adaptations with Integrity” in Copyright and Other Fairy Tales, ed Porsdam. Such adaptations are to be carefully executed, with “integrity.” Elias Bredsdorff, Hans Christian Andersen: The Story of His Life and Work 1805–75 (London: Phaidon, 1975) 308.13. Rose, Authors and Owners 25. Michel Foucault. “What is an Author?” in Textual Strategies: Perspectives in PostStructuralist Criticism, ed JV Harari (London: Methuen, 1979) 141.60.

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119 Julie E Cohen, “Creativity and Culture in Copyright Theory,” 40 UC Davis L Rev 1151 (2007) 1202; Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’” 1991 Duke LJ 455 (1991) 482; Jessica Litman, “The Public Domain,” 39 Emory LJ 965 (1990) 1010; Mark Rose, “The Author as Proprietor: Donaldson v Becket and the Genealogy of Modern Authorship” in Of Authors and Origins, eds Sherman and Strowel 55; David Saunders, “Dropping the Subject: An Argument for a Positive History of Authorship and the Law of Copyright” in Of Authors and Origins, eds Sherman and Strowel 99–100, discussing Terry Eagleton, Literary Theory: An Introduction 138 (Minneapolis: Univ Minn, 1983) (“[t]here is no such thing as literary ‘originality,’ no such thing as the ‘first’ literary work: all literature is intertextual”). 120 Beardsley, Aesthetics 26, 249. 121 Robert C Solomon, A History of Western Philosophy since 1750: The Rise and Fall of the Self (Oxford: Oxford UP, 1988). 122 Critique of Judgment §49, 5:318. Merges argues that Kant’s interest in both, the individual creator and also the community, was with the direction reversed from what is apparent in much modern scholarship on intellectual property. While “[i]nterpersonal influence, and not isolation, is the thrust” of Kant’s argument on aesthetics, Kant “spent more time thinking about the flow of influence from the individual to the community, rather than the other way around.” Merges, Justifying Intellectual Property 91–2. 123 CCH v Law Society of Upper Canada [2004] 30 CPR4th 1. 124 Neil Weinstock Netanel, “Copyright and the First Amendment: What Eldred Misses – And Portends” in Copyright and Free Speech, eds Griffiths and Suthersanen 6.51. 125 Copyright Act 1976, 17 USC 107, Public Law 94–553. 126 Lenz v. Universal Music Corp., 801 F3d 1126 (9th Cir 2015), amended by 815 F3d 1145 (9th Cir 2016), cert denied 137 SCt 416 (2017). 127 Lenz, 801 F3d at 1133. The Court recalled an earlier decision stating that “since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.” Bateman v Mnemonics, 79 F3d 1532, 1542 n22 (11th Cir 1996). In an earlier decision, a Circuit Court wrote: “fair use should be considered an affirmative right under the 1976 Act.” Suntrust Bank v Houghton Mifflin, 252 F3d 1165 (11th Cir 2001) 1260 n3 (more comprehensive opinion at 268 F3d 1257 (11th Cir 2001) 1264 & n3). 128 Lenz, 801 F3d at 1138. 129 Digital Millenium Copyright Act, 17 USC §512(c)(3)(A). 130 Lenz, 801 F3d at 1134–6. 131 17 USC 106A(a). 132 Dane Ciolino, “Rethinking the Compatibility of Moral Rights and Fair Use,” 54 Washington and Lee L Rev 1 (1997). 133 CA 5097/11 Telran v Charlton, IsrSC (2013) para 28 (Justice Zilbertal); CA 7996/ 11 Safecom v Raviv, IsrSC (2013) para 35 (Justice Danziger). 134 Civ 7648-09-08 Katz v Rotman (DCt) (8 July, 2010) paras 14–16. I celebrate the Court’s typographical error, changing fair use to fair change, in citing my article on the Israeli moral rights law (Kim Treiger-Bar-Am, “The Moral Right of Integrity, the Defense of Reasonableness, and the Balance between Them,” 8 Alei Mishpat 237 (2010) (Hebrew)). 135 Neil Weinstock Netanel, “Making Sense of Fair Use,” 15(3) Lewis and Clark L Rev 715 (2012). 136 Campbell v Acuff-Rose, 510 US 569 (1994). 137 Campbell, 510 US at 579 (citations omitted). 138 Folsom v Marsh, 9 F Cas 342, No 4901 (CCD Mass 1841).

196 Positive Freedom in Expression 139 Pierre N Leval, “Toward a Fair Use Standard,” 103 Harv L Rev 1105 (1990) 1109. While the derivative rights doctrine regards copies and changes to a work, the transformative use defense regards the use of a work. 140 Bill Graham Archives v Dorling Kindersley, 448 F3d 605 (2nd Cir 2006). 141 Suntrust, 268 F3d 1257 (11th Cir 2001). 142 Authors Guild v Google, 804 F3d 202 (2nd Cir 2015), cert denied 84 USLW 3357 (2016). 143 Designers Guild v Russell Williams (Textiles) [2001] FSR 11, at 131 paras 64–5. 144 CA (Request for Appeal) 7774/09 Weinberg v Weishopf, IsrSC (28 August, 2012). 145 Confetti Records [2003] ECDR 31, para 7. 146 Tidy v Trustees of the Natural History Museum [1995] 39 IPR 501 (Ch). 147 Pasterfield v Denham [1999] FSR at 182. 148 Morrison Leahy Music v Lightbond [1993] EMLR 144 (modifications found potentially to occupy the infringing middle ground were sent for a factual determination at trial). 149 CA 9289-02-09 Golani v Cohen (DCt Cent Dist) (8 February, 2012) para 61 (translation mine-KTB). See also CC 8303/06 Mehula Dance Center v Hanan Cohen (DCt Jer) (14 August, 2008) paras 24, 26; CC 1437/02 Mosenson v HaEfrati (DCt TA) 33(8) PM 717. 150 CA 6157/04 David (“Hachi Tov”) Devash v Adler Chomsky and Vershavsky (DCt Jer) (7 Nov, 2006) 79. 151 Campbell, 510 US at 579, citing Leval, “Toward a Fair Use Standard,” 103 Harv L Rev at 1111. 152 Essay 8:87. 153 Oxford English Dictionary (“meaning”); Goodman and Elgin, Reconceptions 55. Through transformative use, the subsequent author gives the work new expression and message, which gives the reader an opportunity to establish a new meaning for the work. Randall P Bezanson, Art and Freedom of Speech (Urbana: Univ Illinois, 2009) 211 (on Campbell). 154 Campbell, 510 US at 583. 155 Arturo Schwarz, The Complete Works of Marcel Duchamp, 2nd ed, vol 1 (New York: Delano Greenridge, 1997) 43. 156 Leslie Kim Treiger-Bar-Am, “Christo’s Gates and the Meaning of Art: Lessons for the Law,” European Intellectual Property Review 389 (2005). 157 Kim Treiger-Bar-Am, “Copyright: Author, Reader, and Meaning,” Oxford Research Encyclopedia of Literature (forthcoming, 2019). 158 Immanuel Kant, Critique of Pure Reason, trans & eds Paul Guyer and Allen W Wood (Cambridge: Cambridge UP, 1998) A314/B370, discussed in Autonomy and Community, eds Kneller and Axinn viii. 159 David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (New York: Oxford UP, 1991) 159. 160 Roland Barthes, Image, Music, Text, trans S Heath (London: Fontana, 1977); Roland Barthes, “From Work to Text” in Textual Strategies, ed Harari. 161 Pelagia Goulimari, Literary Criticism (London: Routledge, 2015). 162 Randall P Bezanson, “Speaking Through Others’ Voices: Authorship, Originality and Free Speech,” 38 Wake Forest L Rev 983 (2003); Mark Tushnet, “Art and the First Amendment,” 35 Colum JL & Arts 169 (2012). 163 Cariou v Prince 714 F3d 694 (2nd Cir 2013) 707, cert denied 186 L Ed 2d 946 (2013). 164 Leibovitz v Paramount Pictures, 137 F3d 109 (1998) 114. 165 Pleasant Grove v Summum, 555 US 460 (2009) 474, 476–7. With the recent crises over repeated city council efforts at removal of publicly-placed sculptures of Robert E Lee, the Confederate war hero in the Civil War, the issue of the changing meanings of artworks has come to the forefront of public debate. 166 Hurley, 515 US 557. 167 Virginia v Black, 538 US 343 (2003).

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168 Falwell v Hustler Magazine, 485 US 46 (1988); Leslie Kim Treiger, “Protecting Satire Against Libel Claims: A New Reading of the First Amendment’s Opinion Privilege,” 98 Yale LJ 1215 (1989). 169 Confetti Records [2003] ECDR 31 para 151. 170 Pasterfield v Denham [1999] FSR at 184 (citation omitted). 171 CC 1437/02 Mosenson (on “Hasamba”). 172 CA 1506/06 De’lal para 1.4. 173 CC 8303/06 Mehula; CF 6157/04 David (“Hachi Tov”) Devash. 174 CA 8483/02 Eloniel v McDonald, IsrSC (2004), para 40 (Shakespeare’s works are Shakespearean because of their social construction); CA 2287/00 Shoham v Harrar, IsrSC (2005) (the objects at issue have value because of the social response to them). 175 Treiger-Bar-Am, “Adaptations with Integrity,” in Copyright and Other Fairy Tales, ed Porsdam. 176 Kim Treiger-Bar-Am, “Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties,” 63(4) J Copyright Soc’y USA 551 (2016). 177 Netanel, “Copyright Alienability Restrictions,” 24 Rutgers LJ at n221 (on Germany). Pursuant to Israel’s Copyright Act-2007 §56e, good faith is one of the factors courts may consider in assessing damages for copyright or moral rights infringement. 178 Jeremy Waldron, “Dignity, Rights, and Responsibilities” (2010) NYU Public Law and Legal Theory Working Papers 242. 179 Meera Nair, About Fair Duty, https://fairduty.wordpress.com 180 “Principle of Private Ordering,” Israel Internet Association (comment by Michael Birnhack). 181 Niva Elkin-Koren and Orit Fischman-Afori, “Taking Users’ Rights to the Next Level: A Pragmatist Approach to Fair Use,” 33 Cardozo Arts & Ent LJ 1 (2015), discussing Cambridge Univ Press v Becker, 863 FSupp 2d 1190 (ND Ga 2012), rev’d sub nom, Cambridge Univ Press v Patton, 769 F3d 1232 (11th Cir 2014). 182 Relatedly, practices may be designed by algorithm based on past court decisions of noninfringing uses. Niva Elkin-Koren, “Fair Use by Design,” 64 UCLA L Rev 22 (2017). 183 CCH [2004] SCC 13. 184 Harper, 471 US at 549 (fair use allows others to use copyright work when “reasonable”); Sony Corp of Am v Universal City Studios, 464 US 417 (1984) 454 (fair use is an equitable rule of reason). 185 David Vaver, “Copyright and the Internet: Owner Rights and User Duties?” 57 Case Western L Rev 731 (2007) 747–9. Vaver notes that copyright is freighted with the public interest, and in early law owners bore duties similar to those providing necessities such as innkeepers and common carriers – who could not charge outrageous sums. 186 Israel’s Copyright Act-2007 §50; Australian Copyright Act 1968 §195AR-195AT. 187 Dutch Copyright Act 1912, Article 25. 188 “As a copyright holder, the Foundation supports fair use of Rauschenberg artwork images. Similarly, as a creator of educational content, the Foundation exercises the right to responsibly make fair use of works for which the Foundation does not own the copyright.” Robert Rauschenberg Foundation, http://www.rauschenbergfounda tion.org/foundation/fair-use 189 Eldred v Ashcroft, 537 US 186 (2003) 219–21; Harper & Row, 471 US at 556. 190 Netanel, Copyright’s Paradox; Jed Rubenfeld, “The Freedom of Imagination: Copyright’s Constitutionality,” 112 Yale LJ 1 (2002); Michael D Birnhack, “Copyright Law and Free Speech after Eldred v. Ashcroft,” 76 S Cal L Rev 1275 (2003). I have proposed that the limitation and necessary balance of rights be considered as within the doctrine of freedom of expression. Leslie Kim Treiger-Bar-Am, “Authors’ Rights as a Limit to Copyright Control” in New Directions in Copyright Law, ed Macmillan, vol 6 (2007).

198 Positive Freedom in Expression 191 Drassinower sees balance as regarding value and efficiency; he argues that copyright is more about speech, equality, and dialogue. Yet also those values (rather than value) may be balanced. He would, however, accept the balance I suggest (Drassinower’s remarks at the Interdisciplinary Center Herzliya, November 2, 2015). I accept his concept of dialogue. 192 The views of balancing held by Aharon Barak, Jeremy Waldron and Christopher McCrudden are presented in the Introduction to Part II. 193 Treiger-Bar-Am, “Authors’ Rights as a Limit to Copyright Control” in New Directions in Copyright Law, ed Macmillan, vol 6. 194 Drassinower, What’s Wrong with Copyright? (on reciprocity). Ernest Joseph Weinrib, The Idea of Private Law (Cambridge, MA: Harvard UP, 1995) (on mutuality and equality of obligations). 195 Where private sources exercise significant socio-economic power, their attempts to control expression through the use of copyright may be characterized as political. Macmillan, “Commodification and Cultural Ownership” in Copyright and Free Speech, eds Griffiths and Suthersanen 3.03, 3.05–3.07. 196 See Owen M. Fiss, The Irony of Free Speech (Cambridge, MA: Harvard UP, 1996). State obligations are discussed in the Introduction to Part II. 197 Craig, Copyright, Communication and Culture; John Christman, “Autonomy, Social Selves, and Intellectual Property Claims” in New Frontiers in Intellectual Property, ed Lever; Zemer, “Dialogical Transactions.” On Kant’s concern for authorship regarding the individual creator and the community, see Merges, Justifying Intellectual Property 91–2, as discussed earlier. 198 Tom R Tyler, Why People Obey the Law (Princeton: Princeton UP, 2006). 199 Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999). The recognition of values in law is discussed in the Introduction to Part II.

6

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In light of its constitutional definition, Israel is to embody and reflect both Jewish and democratic values. While the consistency of those values is at times debated, their coherence is here underscored. The commonality between Kantian and Jewish understandings of the concept of freedom highlights this view, given the adoption in democracies of principles of freedom and equality. It is submitted that the Jewish and democratic values of the State of Israel support a pluralism of voices in expression, and hence the expression of women in prayer in Israel. The conception of positive freedom, whereby the essence of freedom is the duty of respect, verifies the respect that is due. Many principles of democracy were developed in the theoretical work of Kant. Democracy relies on principles of Kantian thought including freedom, equality and justice. Human rights at the center of democracy relate to the Kantian theory of autonomy and dignity. I do not argue that political philosophy derives principles of the structure of government from Kant, such as majority rule.1 Rather, I point to the basis of democratic theory in ideas that Kant developed. Fundamental values are shared by Kantian thought and democracy. Also Jewish notions of freedom and equality are said to have influenced and been incorporated into democratic ideals. In the Gettysburg Address, Abraham Lincoln recalled the biblical principle of equality, in calling the nation conceived in liberty “dedicated to the proposition that all men are created equal.” Jewish thought from the Hebrew Bible and prophets had vast influence on the founding fathers of the American Revolution2 and political thought in Europe.3 Yet at issue here is not whether Judaism has traditionally advocated a democratic system of government, which is indeed debated, and features of the biblical religion itself termed “proto-democratic.”4 Nor is a religious view taken. Rather, it is the shared values between Jewish thought and democracy that are considered. Jewish sources providing a normative base for approaches in Western liberalism have indeed been analyzed by commentators.5 The notion of Jewish and democratic values being taken together – and impacting one another – is not foreign to the Jewish tradition. The fear of influence from outside of the Jewish tradition distorts the nature of that tradition itself, which throughout the ages has been affected by external schools of thought. As seen earlier, efforts were made for instance by the renowned Vilna Gaon and Maimonides to

200 Positive Freedom in Expression bring varying streams of thought together; nor was Kantian theory ignored, with a blessing even made to acknowledge the great wisdom granted to Kant. The vision of positive freedom shared between Kantian and Jewish thought is a value of democratic liberalism as well. While the central understanding of freedom in democracy is negative liberty, a positive conception of freedom also has a place in democratic liberalism.6 As Kantian and Jewish thought affirm, freedom ought to be perceived as affirming a duty of respect. The ideal of respect for dignity is also an ideal of democratic liberalism. While it is often presumed that duty is central in Judaism and rights in democratic theory, the two coincide. Both traditions understand the essence of freedom as obligation, and the essence of right as duty. On both Jewish and democratic values, duties of respect are intrinsic to rights. Hence the two sets of values arising from Israel’s self-definition as the Jewish and democratic state are consistent. While at times Jewish and democratic values are said to conflict, my argument is in support of their accord. It is proposed that the duty of respect arising from views of positive freedom in Kantian and Jewish thought can be attributed to the Jewish and democratic values of the State of Israel. Common to both Jewish and democratic thought is the freedom of speech and respect for the dignity of speakers. Both support a pluralism of voices, and respect for that pluralism. The Kantian ethic supports autonomy of expression and the duty of respect for it. Respect is to be shown to the women in prayer in Jerusalem. The term “pluralism” is used here to connote a multiplicity of diverse perspectives that are to be expressed and heard. The use of the term in common usage relating to the promotion of a society in which different groups coexist is also relevant, as an express subtext. The multitude and diversity of groups within the Jewish people was recorded in the Bible with the 12 tribes, and continued throughout Jewish history. The population of the multicultural modern State of Israel reflects divergent groups and cultures. The multiplicity of interpretations of Jewish law is reviewed below. The Women of the Wall (“WoW”) began in 1988 to pray jointly and read from the biblical scroll at the ancient Jewish holy site of the Western Wall in Jerusalem. Their form of worship is one of the current movements of Jewish renewal. WoW’s prayer, and their location at the Western Wall, is opposed by the ultra-Orthodox community. WoW has faced hostility and often violence since its inception, with the women subject to continuous harassment during their monthly prayer services. The controversy over WoW is not a conflict between Jewish and democratic values. It is a conflict between rights of expression on the one hand, and religious authority and ultra-Orthodox sensitivities on the other. Jewish and democratic values, which justify the rights of and duties of respect for pluralism, cohere in their support of WoW. It is argued that in addition to the women’s rights, duties of respect must also take center stage in the discourse on the issue pursuant to Jewish and democratic values.7 They are to be shown respect for their rights: that respect is correlative as well as intrinsic to the rights of the other worshippers and the authorities of events at the Wall. The respect to be shown is to be affirmative – entailing intent, a showing of concern through compassion, and action.

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This chapter begins by setting forth the constitutional character of Israel as a Jewish and democratic state. The nature of the rights and duties regarding expression derived from Jewish and democratic values is then explored: from Jewish thought and tradition, as well as democratic theory and legal doctrine. Recent Jewish renewal developments in Israel and, in particular, WoW’s worship gatherings and legal battles are then reviewed. The duties to respect women’s voices in Israel come forward.

I Jewish and Democratic State of Israel Israel is constitutionally defined as a Jewish and democratic state. Is it possible for Israel to reflect both sets of values? The debate in Israel surrounding this question has included legal, theoretical and practical discourse. The position that Jewish and democratic values cohere is supported in the ensuing discussion. A. Constitutional Definition and History Israel does not have a written constitution, but fundamental principles that are considered constitutional. It is to be recalled that England, too, has no written constitution, but values and principles that are considered embedded. Israel’s Declaration of Independence sets forth values which are taken as founding the vision of the society. A series of Israel’s quasi-constitutional Basic Laws from the early years of the State set forth basic rules and procedures of Israel’s parliament (the “Knesset”) and the Judiciary. Basic Laws enacted in the 1990s proclaim human dignity, and the freedom of vocation. The guideline of Israel as a Jewish and democratic state is proclaimed. Upon the founding of the State of Israel in 1948, the Declaration of the Establishment of the State of Israel,8 known as the Declaration of Independence, was drawn up. The Declaration of Independence begins by noting that the “Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped.” The Jewish character of the State is made clear. The Declaration of Independence does not state “democratic” but lists the fundamental principles including equality and freedom of religion and culture. It proclaims that the State of Israel … will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations. The phrase “Jewish and democratic” appears in statutory language beginning in the 1950s,9 and then in 1980 in the Foundations of Law statute. The law provides that a gap (lacuna) in legislation and judicial precedent, which cannot be filled by

202 Positive Freedom in Expression analogy, must be completed according to the principles – including of freedom – of Israel’s heritage. Section 1 of the Foundations of Law, 5740–1980 provides: Where a court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel’s heritage. With the 1985 amendment to Israel’s Basic Law: The Knesset (section 7A(a)(1)), the law prevents a candidate from participating in elections to the Knesset who negates the existence of the State of Israel as a Jewish and democratic state. The Basic Law: Human Dignity and Liberty of 1992 provides in section 1 that the purpose of that Basic Law “is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” Upon amendment in 1994, that Basic Law begins with the following: Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. That section was inserted also in the Basic Law safeguarding the freedom of vocation (1994), and the section following it provides as follows: The purpose of this Basic Law is to protect freedom of occupation, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state. B. Jewish and Democratic Values Jewish and democratic values are on many views in coherence, yet are often perceived as in conflict by others. Whether the values can live side by side has been a subject of debate for decades, and in recent times the debate has sharpened. The effectiveness of their coherence or synthesis is underscored here. Jewish values, as provided in the Foundations of Law statute, are present in the principles of “freedom, justice, equity, and peace of Israel’s heritage.” Former Israeli Supreme Court Chief Justice Aharon Barak suggests that the Jewish element of the State is to be abstracted such that it will unite all of society’s members and find what is common between them. The abstraction and universalization will be such that it will comply with the democratic character of the State. Fundamental values of Judaism, and of the State, include love of humankind, the sanctity of life, social justice, doing what is good and right, preserving human dignity, and the rule of law – values bequeathed by Judaism to the entire world.10 In addition to its values, the Jewish character of the State is defined by the majority of its population, its language and its holidays.11 The democratic character of the State is present in the proclamation of full and equal citizenship in Israel’s Declaration of Independence. It is expressed inter alia

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in rights of dignity and equality, free elections, separation of powers, the rule of law and independence of the judiciary.12 In other words, beyond the formal requirements of proper elections and the rule of the majority, democracy “has its own internal morality based on the dignity and equality of all human beings.”13 Ruth Gavison, who was commissioned by the Ministry of Justice to report on Israel’s constitutional anchoring as a Jewish and democratic state, has stated that democracy reflects humanism, a commitment to positive liberty, basic human rights and equality.14 The debate over what the modern State of Israel should look like goes back to the time of the Zionist founders in the late 1800s in Europe. At the First Zionist Conference in Basel in 1897, Theodore Herzl and others envisioned the founding of a future state and debated its nature. In the first half of the twentieth century, the question of whether Israel should be governed by Jewish law preoccupied Zionist jurists.15 In 1948, upon the establishment of the State, the founders intentionally cooperated in masking the fierce debate over whether Jewishness is a national or religious identity. Reference in the Declaration to the “rock of Israel,” which may be interpreted as God but also as the bedrock of the Jewish people, was a deliberate compromise between religious and non-religious Jewish leaders. The debate came to the fore in Knesset discussions over a constitution in 1950.16 Many Supreme Court Justices have affirmed the Jewish and democratic nature of the Israeli State. Just as the French-ness of France does not deny its democratic nature, also the Jewish-ness of Israel can be maintained together with its democratic character. This analogy was made by former Chief Justice of the Supreme Court Justice Meir Shamgar to illustrate the consistency of Jewish and democratic values.17 Barak understands the expression “Jewish and democratic” not to imply two opposites, but rather complementary and harmonious elements; the combination and synthesis between the two are what have shaped the values of the State of Israel.18 It is incumbent upon the Court to strive to synthesize the two sets of values.19 Barak attributes the role of synthesizer generally to judges as interpreters of constitutional text and statute: “Naturally, interpreters strive for synthesis and integration. The purposive interpreter does not look for conflicts; he aims for harmony.”20 Gavison takes the position that the values cohere, concluding that “a state that is both Jewish in important respects and democratic is possible, conceptually and politically.”21 The democratic character of Israel supports its Jewishness: it is in accordance with the self-determination of the majority of the population of the State, who are Jewish.22 Yael Tamir argues that all democratic states have a particular aspect following from its majority, and Israel’s particularism is its Jewishness.23 Yet the issue has long been the subject of debate. The Court has engaged the issue of how to approach a conflict between Jewish and democratic values, and whether or how to prioritize between them. Among former Supreme Court Justices who debated the issue is Haim Cohn, holding that democratic values take priority.24 According to former Justice Menachem Elon Jewish law takes

204 Positive Freedom in Expression precedence, thus for example requiring the prohibition of euthanasia given the sanctity of human life – as man was created in the image of God.25 A further controversy was presented in the case brought by the extremist Meir Kahane, who was excluded from candidacy to run for Knesset elections because of his anti-democratic positions. An argument on his behalf was that democracy and Jewishness contradict each other and are therefore incompatible. On this ultrareligious approach, Jewishness signifies religion and religiosity of a particular kind, which is widely rejected in Israel: theocracy.26 Today’s debate is not, then, so new. The current debate over the way in which the State should reflect its Jewish character has widely lent itself to controversies in society. Debate surrounds, for instance, how a civics book for high school students should be designed.27 Controversy has arisen over the question of how much Jewish law should be relevant to decision-making in the courts today. Efforts were made to have the Foundations of Law require judges to consider Jewish law. A compromise was reached whereby the law was amended in 2018 to indicate that judges may consider halacha alongside the principles of justice of the Jewish heritage, in the case of a lacuna.28 At the heart of the debate as to whether the two elements of the “Jewish and democratic” formulation can coexist is how “Jewish” values are to be understood. “Jewish values” are often today presumed to be religious ones. It has been argued that a public discourse to define Jewish values must begin.29 The examination here of the values of freedom and the duty of respect in Jewish thought is intended to participate in the debate. The coherence of those values with democratic ideals follows suit.

II Ethics of Communication in Israel In the Jewish and democratic State of Israel, rights and duties of respect for speech are to be upheld. In the following discussion, the Jewish values of ethics in expression are explored, and then, the democratic values. The freedom and openness of speech in the Jewish tradition is apparent from earlier portions of this study. Also, the law’s rationale of autonomy for the freedom of expression has been discussed. In view here is the pluralism of speech in the Jewish tradition, and its view of truth as a prism with many angles. In law, the rationales of truth and democracy for free speech are examined. A. Jewish values 1) Pluralism The Jewish tradition is rich with voices. Accounts of humans arguing with each other and with God appear throughout the biblical narrative. The biblical story of the Tower of Babel, showing the danger of a uniform society with one language and common words, is said to teach the lesson of pluralism. The solution given is diversity. God disperses the people throughout the earth and varies their languages.30

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Women’s voices are also present in the Biblical narrative. Exodus tells us that “all the women” of the Sinai generation follow Miriam in singing and playing the tambourine (Exodus 15:20). Deborah sings from the seat of government. Hannah delivers a poetic thanksgiving to God. The first book of Samuel relates that women from all the towns of Israel sing after David’s slaying of Goliath. Many understandings of Jewish law are deemed as deriving from all of the Jewish people having stood at Mount Sinai when the Torah was given. Even souls of future generations of the Jewish people are said to have been present.31 The interpretations of the words received have varied. According to some rabbis, each of those who heard the words understood them in their own way. Talmudic sages interpreting the law included (albeit rare) female voices, such as that of Bruria.32 Female voices are among those engaging in midrash and creating meaning for biblical texts and Jewish law, which continues through to today in widespread fashion. Meaning is developed not only in discourse but in practice as well. Orthodox women are said to be situating “the interpretation of halakhah in a particular context by living out their new vision while still remaining part of the community. In this way they play an instrumental role in determining how interpretation will go.”33 Diverse practices were also apparent in Talmudic times.34 The myriad movements include the Hasidic and Kabbalist masters and their opponents described above, and the Reform, Conservative, and Modern Orthodox factions discussed below. Diversity of opinion is of central importance in halacha. A blessing is made upon beholding a large population: “Blessed be the Knower of Secrets, for the mind of each is different from that of the other, just as the face of each is different from that of the other.”35 In the words of the Chief Rabbi in pre-state Israel, Abraham Isaac Kook: “the multiplicity of opinions … is the very thing which enriches wisdom and causes it to expand.”36 Multiplicity and diversity are the breath of life of halacha, and the difference between human beings is a constitutive foundation of halacha.37 2) Truth as a Prism The opinions of the Talmudic commentators Hillel and Shammai – “these and those” – are both called the words of God. Differing and even erroneous opinions of law continue to be recorded.38 How can this be so? In Jewish thought truth is conceived as a prism. While divine truth is absolute and singular, truth for humans on earth encompasses many different segments. Divine truth may include what humans consider contradictory. The biblical narrative shows the prophet Jonah’s difficulty with understanding and accepting divine truth. In Jonah’s human notion of truth, the response to wrongdoing must be punishment. God’s merciful forgiveness for the wrongdoing led the baffled Jonah to despair. Because of the recall of God’s mercy, the tale is read on the Jewish holiday of the Day of Atonement. Divine truth is deemed absolute and singular. The Talmud instructs that the differing opinions of Talmudic scholars are words of God; the conflicting opinions

206 Positive Freedom in Expression come from one shepherd – namely, God.39 The scholars’ views in disagreement are not absolute truth, but all come from the one God.40 While God’s truth is singular, there are various views of it. Joseph Soloveitchik proclaims that “absolute reality … reveals itself in manifold ways to the subject,” such that a “pluralistic cognitive approach” is necessary.41 The relation between pluralism and truth in Jewish thought has been compared to the statement by the physicist Niels Bohr that while the opposite of a correct statement is a false statement, the opposite of a profound truth may be another profound truth.42 The flourishing of varying approaches therefore must be enabled, as they may each constitute a part of the truth. A pluralistic approach is required. Kantian theory is similar to the notion in Jewish sources that God’s sole truth is revealed to humans through a multiplicity. In Kant’s view there is universal truth, but our limited perception gives us a particular view of it. While reason and universal law are absolute, we can only see what the cognitive capabilities of the human mind allow. Kant does not propound the notion of pluralism with regard to the truth. Yet Kantian theory of judgment lends subjectivity to objectivity. What is cognized is true for humans. Kant claims that error and truth “differ only as the lesser from the greater: there is not absolute error; instead, every cognition, at the time it arises in a human being, is true for him.”43 Also relevant here is the Kantian notion described earlier of an absolute noumenal world, and the phenomena which our consciousness and knowledge may access. Truth as a prism is expressed in a number of images in Jewish thought. The white light of divinity is always refracted through reality’s “dome of many coloured glass.”44 The rainbow after the flood (Genesis 9:16) – the sign of the covenant – is seven colors broken up into seven degrees; together they comprise one complete pure white ray of light.45 With respect to law and society, biblical and Talmudic passages are related to a pluralism of approaches: “God’s word bring[s] forth myriads of sparkles – of sparkling views.”46 A well-known midrash narrative of biblical sources tells of a disagreement during the world’s creation between angels of love and truth, righteousness and peace. God then threw truth down to the earth and it fragmented on the ground. The truth on the earth which is accessible to humans is therefore plural, in many pieces, and is unlike the absolute divine truth. Hence it is written, “Let truth spring up from the earth” (Psalms 85:12).47 The truth that springs up from the earth is multiple: “fragments of it lie everywhere.”48 This is our truth, our reality: the Hebrew term for truth (emet) comprises the first letters of the phrase from the midrash, “Now truth is embedded in earth.”49 Ethical lessons about human discourse arise from the midrash. “When divine revelation enters into the realm of human understanding and discourse, it necessarily achieves a variety of expressions and understandings, including positions that are in tension and attitudes in downright opposition to each other.”50 A further ethical lesson about responsibility is to be derived from the value of truth. The term emet, typically translated as truth, indicates in the Bible the reliability of what the statement refers to over time. Emet signifies

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trustworthiness – namely, that which is steadfast and sure. By contrast, today we relate to the truth of speech in Aristotelian terms as to whether it corresponds to independent reality.52 The biblical approach is ethical, in contrast with the correspondence theory. 51

3) Respect and Tolerance; Relativism Distinguished The acknowledgment of pluralism leads to respect for the other and for the other’s view. From freedom follows pluralism, and the duty intrinsic to freedom requires respect for pluralism. The Talmudic passage regarding divine truth coming from one shepherd instructs respect: in seeking to determine which ruling to follow, one is to work towards “a perceptive heart” to understand each of the differing perspectives, a heart of many rooms.53 Respect for others’ views is necessary, as is respect for the people holding them. In Talmudic times, the opinions of Hillel were said to be preferred because Hillel showed respect to Shammai, who held an opposing view; Hillel stated the opinions of Shammai before his own.54 In the Talmudic tale of the Akhnai oven described in Chapter 3, relations were critiqued and deemed unethical where a rabbi whose opinions were rejected was not treated with respect. Tolerance is a virtue affirmed in Jewish sources. The Sages maintain that God allowed the destruction of the Second Temple because of intolerance.55 In that period, hatred for another’s religious expression was prevalent when it was not in accordance with one’s own view. One whose way was different was judged a nonbeliever. Returning to biblical narrative, the lesson of tolerance and respect is highlighted where the leader to succeed Moses is to be one “who tolerates every single person according to his opinion.”56 I disagree with Avi Sagi that Jewish law adopts tolerance for the other human being but not pluralist acceptance of the other’s view.57 Given that truth is considered a prism composed of varying views, Judaism also accepts the other’s view – insofar as truth (on earth) is not absolute and uniform, namely to be perceived upon a single angle. It is also noteworthy that in modern Israeli law, pluralism and tolerance are upheld together. An example is the ruling discussed above regarding the extremist Kahane, where it is said that in a pluralistic society, tolerance is the force that allows for shared existence.58 Pluralism and tolerance are also treated together in Supreme Court rulings regarding the Women of the Wall presented in the following section. This, however, does not mean that all views are accepted; relativism is eschewed. Relativism denies that there is a truth.59 By contrast, pluralism does not deny truth but rather affirms that values can be reconciled, as Lenn Goodman writes.60 The pluralism of Judaism allows for a standard to be set. A bottom line is required in Jewish thought. Nor is neutrality necessary in liberalism, as seen in Chapter 2. Indeed, neutrality can be a dangerous stance.61 Similarly, the law of freedom of expression pursuant to democratic liberalism sets standards (including liberty) as it theorizes a marketplace of ideas aiming towards the truth.

208 Positive Freedom in Expression B. Democratic values 1) Free Speech Rationales: Autonomy, Truth and Democracy In the free speech doctrine of democratic liberal regimes, three main rationales justify the freedom of speech: autonomy, truth and democracy.62 The approach to the freedom of expression relied upon here is the traditional US First Amendment jurisprudential doctrine which began a century ago (with roots earlier, in the Constitution). The three rationales were affirmed by the Israeli Supreme Court decision of Kol Ha’am. 63 Israeli law gives strong protection to the freedom of speech and upholds the duty to protect it. Principles from the Jewish tradition in this regard were proclaimed in the Declaration of Independence and the Basic Law: Human Dignity and Liberty.64 Free speech principles are to be applied vertically (so that the State does not restrict the freedom of speech) as well as horizontally between private parties.65 The autonomy rationale sets forth that free speech is necessary for the realization of each individual’s autonomy, as discussed in Chapter 4. Because the nature of the human is a speaking being, the right to speech must be protected. In addition to its deontological justification, autonomy is said instrumentally to enable human self-flourishing.66 Kantian roots are apparent in the modern concept of autonomy67 and the legal concept of autonomy of speech.68 I have put forward that the modern conception of the autonomy of expression is apparent in Kant’s own writings, and that Kantian influence can be traced through later philosophical writings. As with the concept of autonomy, so too may the autonomy of expression be understood to entail both freedom and obligation: the freedom of speech signifies the obligation to respect speakers. Autonomy dovetails with tolerance. The freedom of expression is viewed by Kant in the framework of a communal system of communication wherein each listens and engages with the reason and opinions of the other.69 The freedom to think is both individual autonomy and “in community with others to whom we communicate our thoughts and who communicate theirs with us.”70 O’Neill emphasizes that Kant’s proposal for the toleration of the public use of reason requires not only the refraining from interference, but positive action: inaction conveys the view that what the other seeks to transmit is only private expression and not communication.71 The truth and democracy rationales are instrumental, setting expression as a means to an end. According to the truth rationale, free speech enables competition in the marketplace of ideas. Pursuant to this approach, the more voices that are heard, the closer society will be brought to attaining the truth – which is a single truth. Hence the truth rationale may be understood as embodying both pluralism and uniformity: the means is a pluralistic marketplace towards the end of a uniform truth. With today’s acceptance of subjectivity, and even “post-truth,” the rationale still functions to justify free speech. The notion of a marketplace of ideas aimed towards a single truth is similar to the Jewish conception of the fragmentation of divine truth, which also evinces

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pluralism and uniformity. A multiplicity of views is understood to comprise earthly truth, and hence must be respected. The uniform conception of truth alongside tolerance for pluralism is set forth in Ronald Dworkin’s argument based on the ancient Greek parable and the distinction in political philosophy that Isaiah Berlin makes: the fox knows many things, but the hedgehog knows one great thing. Dworkin would like to be considered a hedgehog, accepting absolute moral values.72 Yet Dworkin also supports the view of pluralism upon the tradition of liberalism and that values vary between cultures.73 Given the rise of subjectivity and relativism in modern times, arguably there is no longer a sense of a single truth towards which to aim. The marketplace of ideas in contemporary democratic societies is a blustering cacophony. The internet has created a digital bazaar in which fake news can be spread like wildfire. We are said to live in an age of post-truth. Oxford Dictionaries named “post-truth” the word of the year in 2016, indicating that objective facts are less influential in shaping public opinion than appeals to emotion and personal belief. Today’s clamorous marketplace of ideas may render ineffective the move towards a single truth. Perhaps there is no longer competition in the marketplace, as people choose to view news media proclaiming what they want to hear – what they consider to be true on a subjective basis. Yet even more than in the past, and especially today, a multiplicity of voices is heard. Pluralism is accepted as a necessary part of the culture of a modern democratic society. Even if the rise of subjectivity and relativism has rendered obsolete the quest for a single, objective truth, there is a prevalent sense of the significance of the subjective. While the postmodern distrust of authority and theory that all of so-called reality is constructed leads to the view that all is false, postmodernism also brings with it attention to subjectivity and divergent perspectives. Subjectivity supports a pluralism of voices in the marketplace and respect for the individual and for their views. Feminist views also put forward that truth is not “objective” but is necessarily shaped by the personal and the social.74 The truth rationale justifies free speech and free listening, including hearing what the subject wants to hear. It supports “competition” in the sense that it allows individuals to choose among a multiplicity of what’s out there, and allows views to be debated on a broad scale. Liberalism approves of pluralism, but does not require relativism. Not anything goes. It is not neutral between all views. As seen earlier, liberalism necessarily promotes liberty and the centrality of the human individual and also coheres with perfectionism.75 Dworkin’s favored position of a hedgehog calls for limiting pluralism by a standard of respect and dignity.76 A multitude of morally valuable forms of life exist and may be chosen autonomously, as Joseph Raz underscores.77 Standards can reject some views, for example intolerance.78 Respect for dignity is to be set as a limit to free speech.79 The rationale of democracy to justify free speech claims that members of society need to speak and hear others in order for democratic participation to exist. Free speech enables citizens to present and consider policies, and to run and vote in elections. It allows people to participate in the public discourse by which public

210 Positive Freedom in Expression opinion is formed.80 Like the autonomy and truth rationales, the democracy rationale supports pluralism and the presence of a multiplicity of voices. Also similar to those rationales, the jurisprudence of the democracy rationale proclaims the role of the speaker as well as the listener. The “point of ultimate interest [of the town meeting model of democracy] is not the words of the speakers, but the minds of the hearers.”81 The US Supreme Court has continually held that readers are protected by the First Amendment.82 The multiplicity of voices over time affords meaning to speech.83 The relevance of readers’ understanding of speech in First Amendment and copyright claims, and that the significance of readers’ role in developing meaning is widely discussed in Jewish and Kantian thought, has been shown. Thus upon principles of autonomy, truth – shown to have elements of both uniformity and multiplicity – and democracy, pluralism is affirmed as a Jewish and democratic value.84 Acknowledging pluralism entails affording rights and respect to a multiplicity of voices. Applying that value to the conflict involving women’s prayer at the Western Wall in Jerusalem will result in the affirmation of the rights and respect they are owed. The three rationales of autonomy, truth and democracy underscore the importance of protecting the speech and speech acts of the Women of the Wall. The justifications are deontological and instrumental. First, autonomy: the women’s choice for their form of worship is their exercise of autonomy of expression. It reflects their self-fulfillment and self-actualization. Second, truth: the marketplace produces not only truth, but knowledge.85 WoW’s chosen form of worship contributes to the public’s knowledge of alternative forms of worship, and of women’s voices. The formation of this knowledge for public consideration justifies WoW’s speech even beyond the supposition that one day perhaps the women’s interpretation of the Jewish law and tradition of prayer may be accepted as “truth.” Third, democracy: the women’s chosen form of prayer contributes to democracy as it is their participation in public discourse, insofar as it allows religious women to participate in a public forum. Moreover, in addition to being speakers, the women are readers of the Jewish tradition: they lend it their interpretation and develop its meaning.

III Women of the Wall Over the years, women have undertaken numerous efforts in advancing their place in traditional Jewish practices, while reviving and renewing them. Examples of women taking active roles in religious life include women’s gatherings for prayer and study, and the recent ordaining of a handful of women as rabbis and appointing of women as congregational and rabbinic court advisers and spiritual leaders. A Modern Orthodox movement aims to synthesize Jewish values and Jewish law with modern values. Orthodox women who are “setting up an alternative narrative without severing their connections with current understandings … [create] new possibilities of meaning in the existing corpus of Jewish tradition. ...”86 Efforts for women’s equality in Jewish practices move towards the covenantal goal of

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humankind being in the image of God. Judaism will emerge stronger from its encounter with feminism.88 Frequently debated is the prayer of women with song and reading from the Torah at the holy site of the Western Wall in Jerusalem. The group Women of the Wall has met with fierce opposition from ultra-Orthodox (“Haredi”) men and women, and while a 2013 District Court ruling rendered a partial legal resolution, in practice the saga continues. The rights and duties of respect in light of the Jewish and democratic values of the State of Israel are to be fulfilled. A. Background Beginning in 1988, women began to hold prayer services at the Western Wall in Jerusalem. Liberal-minded women from all parts of the religious Jewish spectrum – including Orthodox women, in focus in much of the discussion here – and from all over the world, joined together for the group prayers.89 The Wall, which is the outer wall – the only part left standing of the Second Temple erected in the 1st century BCE in Jerusalem (on the site of the first Temple built by King Solomon in the 10th century BCE) and destroyed by the Romans in 70 CE – is perhaps the most central location for religious worship and non-religious cultural identification in Judaism.90 The Wall is of great historical and national significance. WoW gather on the women’s side of the plaza partitioned between men and women,91 in monthly prayer celebration of the new moon.92 From the start, the group met with resistance and confrontation from some sectors, and praise and support from others.93 Protests ensued, including verbal harassment and violent outbreaks against WoW. Haredi opposition has been to the women’s group prayer, song and dress. In addition to interpretations of halacha on these points which differ, opposition reflects broader issues in society as well. The opposition has been said to aim for patriarchal religious control over the public sphere of social and religious life.94 Indeed, WoW wants not a side show but to pray at the Wall, and hence for the women to become active participants in public life. While the religious and the political cannot easily be divided – as authority and control play a role in both – other moves are clearly political. A group of Haredi women faced opposition for their attempt to form a political party in recent elections to Israel’s Knesset, but did not receive enough votes to enter the Knesset. 95 Years ago, Leah Shakdiel broke the glass ceiling that kept women off of town religious councils.96 The Haredi opposition also reflects a desire for religious autonomy from civil control, which the religious authorities have maintained since the founding of the State in matters of family such as marriage and divorce. B. The Law WoW petitioned Israel’s Supreme Court sitting as the High Court of Justice. The WoW case has been considered three times over the 30-year period since the formation of WoW, known as Hoffman I, Hoffman II and Hoffman III. 97 The

212 Positive Freedom in Expression Court recognized but has declined to uphold WoW’s rights, despite the strong civil rights perspective in certain areas for which the Supreme Court is well known. In the intervening years, the women’s worship has continued, notwithstanding the continuous harassment and disruption. The Court’s first ruling was given in 1994. The Court ruled that in principle WoW’s activities were to be upheld, but it was for the government to find an administrative solution to safeguard the women’s rights while “minimizing injuries to sensitivities and the ‘customs of the place.’” After a year in which the government provided no solution, WoW again filed suit. Years of deliberation ensued. In 2000 the Court ruled unanimously that WoW had an absolute right to pray at the Wall, to wear religious objects and to read from the Torah. The Court ruled that the government had erred in seeking to balance the rights and interests of both parties, as the rights of WoW took precedence over the sensitivities that opposed them. The government was given a fixed period of time (six months) to devise a solution. Furious opposition to the Court’s decision erupted. The Attorney General asked the Court for a rehearing of the case before the full Court. In 2003, the Supreme Court reversed its 2000 ruling, in a 5–4 decision. The majority recognized the right of WoW to pray in their way at the Western Wall plaza but not as an absolute right. It held that the best way to implement it in a manner that would reduce offense to the sensitivities of other worshippers would be to provide WoW with an alternative location for their prayers.98 Under civil law statute and regulations pursuant to it, the Court is bound to protect the “custom of the place” and consider possible “offense to religious sentiments.”99 The religious sentiments that were taken by the Court to be at issue were those of the Haredi worshippers who objected to the women’s prayers, rather than those of WoW. Pursuant to Israeli law, restrictions on expression may be justified by religious sentiments.100 For instance, sentiments of religious groups were at issue in a case where Haredi members of a residential community wanted to block entry of vehicles on the Sabbath; certain traffic restrictions on the Sabbath were upheld and others disallowed, to respect the right of movement and also the Haredi sentiments.101 The Court reversed the censorship of a film on the life of Christ102 and films addressing the Israeli army in a confrontational mode,103 which threatened injury to religious or national feelings. The Court considered the objections under halacha to WoW. The objection to the women’s prayers as a group and in song is based on a provision of Jewish law regarding a woman’s voice. Haredi women pray individually and silently. The limitation is taken from a passage in the Bible’s Song of Songs denoting the beauty of a woman’s voice as well as a passage in the Talmud discussing whether a woman’s voice distracts men’s prayer. Some views favor asking men to decide if they are able to forego the distraction; other views affirm restrictions on the women. The per se restraint on women’s voices in song came into play in the 18– 19th centuries, proffered by a rabbi whose views have been disputed by many others at the time, and through to today.

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Objection was also raised to the donning by some of the women of religious articles known as phylacteries (tefillin, small leather boxes with scrolls containing Torah verses) and the tallit prayer shawl, traditionally worn by men alone. Former Deputy Chief Justice Menachem Elon, a practicing Orthodox Jew well-versed in Jewish law, reviewed Jewish law and referred to numerous rabbinic opinions under halacha that women’s prayer in a group with tallit and tefillin is not prohibited.104 The objection was said to be based on custom, namely, that the form of worship by WoW was not traditionally practiced.105 Yet it has been seen that halacha may change with changes in practice. The regulation of donning religious items has been approached with divergence today. Pursuant to halacha, wearing the tallit and tefillin in prayer are commandments involving a commitment of time.106 While women are not obligated pursuant to time-based commandments, some rabbis today take the position that this ruling is no longer applicable, as it was made during a period when women were fully dependent and had no control over their time.107 From a legal perspective, it is to be noted that the US Supreme Court has judged the donning of a shawl by a Muslim woman as protected speech, in EEOC v Abercrombie and Fitch. 108 Conservative former US Justice Scalia called it an easy case. The donning of a Muslim headscarf was the subject of a number of European Court of Human Rights cases, for example in Sahin v Turkey.109 The regulation of wearing religious items (or a modest swimsuit called a burkini) in France has been a recent controversial issue. In 2013, a District Court ruling made legal headway for WoW’s case. Arrests and detentions of women in prayer had continued throughout the period since WoW began prayer sessions, with WoW members succumbing to police detention in acts of civil disobedience. The State requested that the defendants – women arrested during prayers – be released on bail only upon the condition that they not celebrate the New Month in prayer at the Wall for three months. The District Court rejected the State’s request. The Court found that there was no reason to suspect the women of causing public disorder, and hence no justification for restricting their right.110 Freedom of speech is not widely discussed by the Supreme Court, but it is present. Rights of speech are recognized only in Justice Shlomo Levin’s opinion in Hoffman I in dissent from the Court’s decision not to enforce an operative order. Levin briefly notes the freedom of expression of both sides. Another recent ruling has supported women’s voices: the Supreme Court held that a Haredi radio station must include broadcasts of women speakers, noting the importance of a pluralism of voices.111 Other rights of WoW are acknowledged by the courts. The right to access and right to prayer are articulated in Hoffman II. The right to movement is strongly affirmed in the 2013 District Court decision regarding detention conditions of WoW participants. Dignity is noted by Justice Elon in Hoffman I, recalling the disrespect involved in denying seats on municipal religious councils to women,112 and noting religious law on the dignity of women.113 Elon discusses the dignity of holy places, as well. The dignity of both sides is implicitly alluded to by Justice Shamgar in Hoffman I.114 Shamgar underscores the necessity in a free society to

214 Positive Freedom in Expression honor dignity in balancing among the right to access, the sentiments of the other worshippers, and the sanctity of the place.115 Pluralism is engaged by the courts. Justice Shlomo Levin’s dissenting opinion in Hoffman I alludes to a pluralism of voices and even of custom, and to tolerance, envisioned by the freedom of expression: As I see it, the phrase “local custom” should not necessarily be interpreted according to Jewish law or according to the status quo. The nature of a custom is that it changes according to the changing times, and [the phrase] should express a pluralistic and tolerant approach to the opinions and customs of others, subject to those reservations which I have already mentioned above.116 This phrase referring to pluralism and tolerance was repeated again and again: it was recalled in Hoffman II and Hoffman III, and in the 2013 District Court ruling. Further, Shamgar posits in Hoffman I that tolerance must be mutual.117 I believe that those points must be further developed and advanced. The courts handling the issue should uphold Jewish and democratic values of a pluralism of voices and rights of free speech. Also, it is proposed that the duty of respect for speech and speakers ought to be affirmed. References to “duty” are present in the rulings whereby the State is said to have a duty to protect history, public order, sentiments, and the custom of the place (in Hoffman I).118 Duties of respect are to be in view. The government decided in 2016 to establish a platform at the southern Wall. Currently an archaeological site, it would serve as an alternative forum for prayer by the non-Orthodox (including Reform and Conservative) for mixed-gender prayer. WoW was also to have a space allotted for their use. Ministerial regulations would establish a committee to govern the site based on principles of gender equality and pluralism.119 While some of the WoW participants accepted the government’s decision, many women objected to it, as they want to pray at the main site. The governmental decision received fierce opposition from the Haredi parties in Knesset until it was withdrawn, in 2017. Meanwhile, the women’s prayer continues, as does the harassment and protest, including physical outbreaks of violence. C. Proposal: Resolving the Conflict How should the conflict play out? Pluralism ought to come forward. It is herein argued that the debate surrounding WoW and situations like it should be approached in light of the Jewish and democratic value of pluralism. Both rights to speech and duties to respect speech and speaker are to be taken into account. The value of dignity should be upheld in society, upon horizontal and vertical duties of respect. Also the legal rule must recognize WoW’s rights of speech and that they are owed respect.

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Pluralism, which has been shown to be a Jewish value, promotes the tolerance that ought to be shown to WoW. The voice of WoW offers an interpretation of tradition and continues the tradition of interpretation. A religious act may be accepted under Jewish law even where it departs from custom.120 Even fragmented aspects of the truth are to be respected. As a minority view of halacha, and even if mistaken, WoW’s interpretation is to be respected. WoW’s approach may be said to partake of the revered tradition in Jewish legal discourse of creative interpretation121 – which takes a view of practice.122 Also different practices, on some Talmudic views, have been deemed acceptable by the tradition.123 Practices can indeed be expected to change on the basis of the changing status of women.124 WoW’s form of prayer should be accepted on the principle of “these and those” – as the words of God, or in the Name of Heaven. As the women of WoW are working within the tradition, the opinions of the Orthodox women can be taken as within the system of halacha. Their views may be considered as partaking of the required accord for differing opinions. The lesson of respect for the other that arises from the Talmudic principle also ought to be extended to the nonOrthodox women participants of WoW (including members of the Reform and Conservative movements).125 I note that mine is an argument under civil law, rather than an argument under halacha; yet lessons from Jewish thought are considered. Even if the interpretations of halacha by WoW are not considered by the ultraOrthodox to be in the Name of Heaven, the women holding the views that the ultra-Orthodox reject are to be respected: the person is to be tolerated, even if their view is not accepted. And the ultra-Orthodox opponents are to listen. The Bible portrays God listening to the voice of the people, and humans, who Judaism teaches are created in God’s image, also are to listen. For instance, Abraham is instructed by God to listen to his wife Sarah’s voice (Genesis 21:12). The voice of the Women of the Wall must be heard. Jewish thought promotes pluralism of voices and the recognition of interpretations not necessarily within Orthodox tradition – but not neutrality. Not anything goes. Jewish law sets human dignity (kevod habriyot) as a baseline disallowing certain restrictions under halacha, including those against women’s participation in prayer and study.126 There are “certain accepted interpretive procedures, so that not every direction can be developed with equal honesty. … [M]oral concerns play an important part in creating the need for new interpretation.”127 It is proposed that, given the morality of positive freedom and duties of respect, WoW’s speech and interpretations must be among the pluralism of voices to be heard. The democratic value of pluralism also affirms the freedom of speech and the duty of respect for it. WoW’s participants and their interpretations are to be counted among the multiplicity of speakers and readers and positions. WoW bears rights, and duties of respect are owed to them. Upon the view of positive freedom, the duty of respect is both correlative to rights and intrinsic to them. Duties of respect for WoW’s prayer are held by other worshippers and by the authorities of the Wall. Those duties are correlative to their own rights. Those duties are also

216 Positive Freedom in Expression intrinsic to their own rights of prayer, and to the rights that come with the authority of those charged with managing the Wall. Intrinsic to the rights of speech of the women of WoW are duties of respect for others’ forms of prayer. The prayer of the Haredi worshippers must not be interfered with by WoW, as indeed it is not.128 Nor is there an obligation for Haredi men or women who are opposed to hearing women’s voices to be at the Wall at the exact time when the women of WoW pray. The ethical duty of respect must be present in culture as well as in law. Duties to respect the voices of the women are to be borne by the ultra-Orthodox, the rabbinic and civic authorities governing affairs at the Wall, the State, the courts and society generally. Values underlying the rights and duties are to be applied through both law and culture, in the Jewish and democratic State of Israel. Duties are to be affected horizontally between and among individuals and vertically between citizens and the State. Judaic, Kantian and democratic thought presume both. Relations between individuals are to be respectful according to Jewish ethics, according to the categorical imperative insofar as maxims of respect are universalizable, according to the correlation of duties to rights in law, and as duties of respect are intrinsic to rights in a democracy. All three also require vertical relations of respect: towards God and the moral law in Jewish and Kantian thought, and towards and by the State and its law in a democracy. The duties of respect for WoW are both horizontal and vertical. On a horizontal plane, the Haredi worshippers at the Wall bear a duty to cease to disrespect – and to violently oppose – WoW’s prayer sessions. WoW’s rights must also be respected on a vertical plane by the authorities. The duties are not only correlative but also intrinsic to the horizontal and vertical rights of the other worshippers and the authorities. The respect to be shown is affirmative: exhibiting intent, compassion, and behavior. The worshippers who disagree with WoW’s form of prayer are to act purposefully, and to show compassion in their deeds. The Haredi opponents need not accept the views of WoW as their own; affirmative respect does not obligate the ultra-Orthodox to “like” the women of WoW. Yet the violent opposition to the women’s prayer must end. What affirmative displays of respect require may be gleaned from the Talmud. The Talmud teaches that what is hateful to one person is not to be done to others.129 In addition to signifying how not to act, the duty of respect also requires positive regard. The Talmudic instruction is to “open your heart to understand the words” of those expressing views that differ from one’s own.130 A change must take place in the intentional behavior of disrespect that continues to accompany the monthly occasions of prayer. The Talmud offers a lesson of respect from the tallit, the donning of which by some of the women participants of WoW has incensed the ultra-Orthodox. If someone is seen to wear an improper tallit – namely to have incorrectly interpreted halacha on the rule according to which tallit should be worn – it is not to be shorn from him in public. He is to be shielded from the embarrassment that

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would cause. A similar principle of honoring feelings should be understood to bar the obstruction of WoW women wearing the tallit. The legal rule should recognize the value of rights and duties of affirmative respect. As with the protection of religious sentiments in Israeli law, a tolerance standard is set, whereby only an outrage that is “harsh, serious and severe” justifies limiting the freedom of expression.132 In Israeli law, Barak calls for balancing rights on a standard of proportionality on the sub-constitutional level, as addressed earlier. The balance of the rights and duties of respect held by WoW and their Haredi opponents can take these factors into account. The legal rule based upon the value of respect for dignity could be a requirement to provide a space at the Wall for WoW’s form of worship (or an alternative space, as the Government decision intended to do, before it was canceled in June 2017). A rule might require allowing worship in accordance with any stream of Judaism (including Reform, Conservative, and Modern Orthodox), and the different methods of worship they adhere to. For rights to be effective, a state may be required to take positive action to protect people’s rights and the ability to enjoy them. The provision in Israel’s Basic Law of Dignity acknowledging that all are entitled to protection of their dignity (Article 4) imposes such a duty upon the State. The provision of platforms for speech, and hence a forum for worship, may be necessary.133 While the ethical value of affirmative respect promotes consideration in the decision-making of the authorities at the Wall and the State (judges as well as officials), legal standards cognize requirements for consideration in good faith of affairs at the Wall and appeals for access to pray. Any number of alternative solutions might be formulated. But the duty of respect must be affirmed, upheld and fulfilled. The solution of the conflict between WoW and its opponents need not be a zero-sum game, with one side winning and the other losing, but a solution that finds a middle ground between them. Upon the disagreements over legal rulings between the schools of Hillel and Shammai, for example, both can be said to have won: even while Hillel’s rules are followed, Shammai’s views are respected and recorded. Jonathan Sacks reasons that in the battle for truth, both sides win; in the struggle for victory, both sides lose.134

IV Conclusion Israel is a Jewish and democratic state. It is constitutionally obligated to sustain both Jewish and democratic values. As democratic values have roots in Kantian notions of freedom and equality, the coherence in view throughout this study between Kantian theory and Judaism lends support to the claim of coherence between the Jewish and democratic values defining the State of Israel. Israel’s democracy is based on principles of liberalism and, as seen earlier in this study, liberalism does not necessitate neutrality. The universal values of liberalism can and must stand together with particularism: they remain strong in a nation-state. Israel’s Women of the Wall are not alone in the moves towards the renewal and revival of Judaism. These women seek to rejuvenate the tradition by expanding the visions and voices encompassed by the tradition. The Jewish and democratic State

218 Positive Freedom in Expression of Israel must protect the women’s right to speak – and to pray. Israel’s strong free speech doctrine must be extended to clearly embrace their rights. In addition to rights, the women are owed duties. Obligation is both correlative and an intrinsic part of freedom; the duty of respect is the essence of freedom. One’s duty to respect the dignity and the speech of the other ought to take a central place in the controversy surrounding WoW. The participants in the prayer services organized by WoW have rights, and are due respect. While concern for dignity and respect is very strong in Israeli society and Israeli law, duties of respect are all too often not taken into consideration. Duties of respect ought to come to the fore. While it is presumed that duty is central to Jewish tradition and rights are central in democracy, the two coincide: the essence of right is duty. Jewish and democratic values afford freedom and obligation, giving rise to pluralism and respect for a multiplicity of voices. Rights must be accorded and duties of respect must be acknowledged, requiring the respect of those voices.

Notes 1 Kant views pure democracy as mob rule. According to Kant, justice requires people to make their own laws, but constrained by constitutionally guaranteed civil liberties. Allen D Rosen, Kant’s Theory of Justice (Ithaca: Cornell UP, 1993) 34. Kant’s argument in his essay “Idea for a Universal History with a Cosmopolitan Intent” (1784) – that the true “civil state” requires representative institutions, the protection of individual rights, and the separation of legislative and executive powers – “clearly evokes the modern Western ideal of liberal democracy.” Kurt Taylor Gaubatz, “Kant, Democracy, and History” 7(4) Journal of Democracy 136 (1996) 136–7. 2 Eran Shalev, American Zion: The Old Testament as a Political Text from the Revolution to the Civil War (New Haven: Yale UP, 2013). 3 On 17th-century influences, see Fania Oz-Salzberger, “The Jewish Roots of Western Freedom,” 13 Azure 88 (Summer 2002). 4 Michael Walzer, “Is Democracy a Jewish Idea?” Moment (September 20, 2012). See also Law, Politics, and Morality in Judaism, ed Michael Walzer (Princeton: Princeton UP, 2006). The Israel Democracy Institute’s Human Rights in Judaism Project aims to reveal the common ground between the Jewish tradition and liberal thought. 5 For example, Robert M Cover, “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative,” 97 Harv L Rev 4 (1983); Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” 106 Harv L Rev 813 (1993). See also Jonathan A Jacobs, “Introduction” in Judaic Sources and Western Thought: Jerusalem’s Enduring Presence, ed Jonathan A Jacobs (Oxford: Oxford UP, 2011) 5–6. 6 Even Isaiah Berlin, in whose theory negative liberty lies in the forefront, “does not fully negate the notion of positive freedom,” Maria Dimova-Cookson, T.H. Green’s Moral and Political Philosophy: A Phenomenological Perspective (New York: Palgrave, 2001) 121–2. Democracy is also deemed to give “individuals the positive liberty and the legal power to participate in the decisions affecting their lives and to choose their leaders.” Ruth Gavison, “Can Israel be Both Jewish and Democratic?” in Asher Maoz, Israel as a Jewish and Democratic State (Liverpool: Jewish Law Association, 2011) 126. 7 Kim Treiger-Bar-Am. “Women’s Voices of Renewal within Tradition: The Women of the Wall of Jerusalem” in Women Writing Across Cultures, ed Pelagia Goulimari (London: Routledge, 2017).

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8 Official Gazette: Number 1; Tel Aviv, 5 Iyar 5708, 14.5.1948, at 1. 9 The State Education Law, 1953 §2 stated that the object of state education is to base elementary education on, inter alia, the values of the Jewish culture and striving for a society built on freedom, equality, tolerance, mutual assistance, and love of humankind. The current law of 2000 (§2(a)(2)) states that education aims to endow, inter alia, the values of Israel as a Jewish and democratic state. 10 Aharon Barak, “The Constitutional Revolution: Protected Human Rights,” Mishpat u-Memshal, vol 1 (1992) 30–1 (Hebrew). Joseph Raz calls this the “only acceptable interpretation.” Joseph Raz, Value, Respect, and Attachment (Cambridge, Cambridge UP, 2001) 37. Raz writes that defining the Basic Law in terms of universal values empties it of meaning, and in this sense “no state can be a morally good state unless it is a Jewish state.” Yet it was the right thing to do. Ibid 37–8. 11 HCJ 11280/02 Central Elections Committee v KM Ahmad Tibi and KM Azmi Bishara, IsrSC 57(4) PD 1 (2003) (Justice Barak) para 12; Basic Law: Israel as the Nation-State of the Jewish People (2018). 12 HCJ 11280/02 Central Elections Committee v Tibi and Bishara (Justice Barak) para 14. 13 Aharon Barak, The Judge in a Democracy (Princeton: Princeton UP, 2006) 33. 14 Gavison, “Can Israel be Both Jewish and Democratic?” in ed Maoz 129. Democracy is not neutral regarding these values, as discussed earlier. 15 Menachem Mautner, Law and the Culture of Israel (Oxford: Oxford UP, 2011) 31–5 (on the “Movement for the Revival of Hebrew Law”). 16 Gavison, “Can Israel be Both Jewish and Democratic?” in ed Maoz 116. 17 EA (Election Appeal) 1/88 Neiman v Chair of the Elections Committee, IsrSC 42(4) PD 177 (1988) 189 (Neiman II). 18 Barak, “The Constitutional Revolution” 30–1. 19 HCJ 11280/02 Central Elections Committee v Tibi and Bishara (Justice Barak) para 7. 20 Aharon Barak, “The Supreme Court, 2001 Term – Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy,” 116 Harv L Rev 19 (2002) 77. 21 Gavison, “Can Israel be Both Jewish and Democratic?” in ed Maoz 148. 22 Ibid 117–21. See also Avishai Margalit and Joseph Raz, “National Self-determination,” 87 Journal of Philosophy 439 (1990) 456–7. 23 Yael Tamir, “Commentary: A Jewish Democratic State” in The Jewish Political Tradition: Authority, eds M Walzer, M Lorberbaum and NJ Zohar, vol 1 (New Haven: Yale UP, 2000). 24 Haim H Cohn, “Values of the Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty” in HaPraklit-Jubilee Volume (Israel Bar Association, 1994) (Hebrew) 9, 24. 25 CA 506/88 Shefer v the State of Israel, 48(1) 87 (1994) 167 (Justice Elon); Menachem Elon, “The Role of Statute in the Constitution: The Values of a Jewish and Democratic State in Light of the Basic Law: Human Dignity and Liberty,” 17 Iyunei Mishpat 659 (1992) 686–7 (Hebrew). 26 Gavison, “Can Israel be Both Jewish and Democratic?” in ed Maoz 133. I do not put forward an argument that religion is necessary for society or to a liberal polity, as discussed in the Introduction. 27 Allison Kaplan Sommer, “How Civics Class Became Israel’s Hottest Political Football,” Ha’aretz (January 27, 2016). 28 Foundations of Law (Amendment), 5778–2018. 29 Anshel Pfeffer, “Who is Afraid of Jewish Values?” Haaretz (May 15, 2017) (Hebrew). 30 Naftali Zvi Yehuda Berlin (known as the Netziv) argues that it was the prohibition of disagreement that was the sin of the builders of Babel. Ha’amek Davar to Gen. 11:4. Rabbi Elisha Wolfin underscores the lessons of story of Babel on the dangers of uniformity, in contrast with solidarity. http://www.masorti.org.il/kehilot/uploads/vea havta/editor_uploads/files/1508498958.pdf (Hebrew)

220 Positive Freedom in Expression 31 BT-Shabbat 39a, discussed in Chapter 3. 32 Amos Oz and Fania Oz-Salzberger, Jews and Words (New Haven: Yale UP, 2012) 61, and generally 57–105. 33 Tamar Ross, Expanding the Palace of Torah: Orthodoxy and Feminism (Waltham: Brandeis UP, 2004) 174. 34 BT-Yevamot 14a, discussed below. 35 BT-Berakhot 58a. 36 David Golinkin, “Is Judaism Really in Favor of Pluralism and Tolerance?” 9(6) Responsa in a Moment (Jerusalem, 11 Tammuz 5775-June 2015) on Olat R’iyah, vol 1, 330. 37 Avi Sagi, The Open Canon: On the Meaning of Halakhic Discourse, trans Batya Stein (London: Continuum, 2007) 210–11. 38 Nahmanides’ commentary on Deut. 17:113. 39 BT-Hagigah 3b (the wise sit in manifold assemblies and offer different rulings of law, and all are given by God). 40 Rashi comments on BT-Ketubot 57a that when Amoraim (rabbinic scholars from 200–500 CE) enter into a dispute of halacha, both represent the view of the One living God. 41 Joseph B Soloveitchik, The Halakhic Mind (New York: Seth, 1986) 16. 42 Reuven Kimelman, “Judaism and Pluralism,” 7(2) Modern Judaism 131 (1987) 137. 43 Immanuel Kant, “Review of Schulz’s ‘Attempt at an Introduction to a doctrine of morals for all human beings regardless of different religions’” (1783) in Immanuel Kant, Practical Philosophy, trans & ed Mary J Gregor (Cambridge: Cambridge UP, 1996) 8:10 (emphasis in original). Kant continues: “Its correction is only the addition of representations that were previously wanting, and what was once truth is subsequently changed into error by the mere progress of cognition.” Ibid 8:10–11. Telling the truth is coherent with the human being’s inner end and natural purposiveness of communicating one’s thoughts. Immanuel Kant, The Metaphysics of Morals (1797) [“MM”] in Practical Philosophy 6:429–30. 44 Joseph B Soloveitchik, Halakhic Man (Philadelphia: Jewish Publication Society, 1983) 46. 45 Yalkut Shimoni Parshat Emor 651. Kook views multiplicity as the sparks on earth that all derive from one unified divine spark. Sagi, The Open Canon 120. 46 Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984) 123 (on Psalms and Jeremiah, as well as BT-Sanhedrin and BT-Shabbat 88b). 47 Genesis Rabbah 8:5 (R. Simon). 48 Jonathan Sacks, “Dignity of Difference: Exorcizing Plato’s Ghost” in Jonathan Sacks, Universalizing Particularity, eds Hava Tirosh-Samuelson and Aaron W Hughes (Leiden: Brill, 2013) 55. 49 Avivah Gottlieb Zornberg, Genesis: The Beginning of Desire (Philadelphia: Schocken, 1995) 110. This midrash has been related to the declaration by a Talmudic rabbi (in the dispute over the purity of the Akhnai oven) that Jewish law is to be determined on the earth and not in heaven, as discussed earlier. Eliezer Berkovits, Not in Heaven: The Nature and Function of Jewish Law (Jerusalem: Shalem, 2010) 83–4. Also related is the notion of multiple interpretations of God’s law. 50 Leon Wiener Dow, “Ópposition to the ‘Shulhan Aruch’: Articulating a Common Law Conception of the Halacha,” 3(4) Hebraic Political Studies 352 (2008) 359–60. 51 “Interview with Chief Rabbi Lord Jonathan Sacks (October 29, 2012)” in Sacks, Universalizing Particularity, eds Tirosh-Samuelson and Hughes 117. Also faith regards trust, as discussed in Chapter 1. 52 Yoram Hazony, The Philosophy of Hebrew Scripture (Cambridge: Cambridge UP, 2012) 203, 343. 53 BT-Hagigah 3b; David Hartman, A Heart of Many Rooms: Celebrating the Many Voices within Judaism (Woodstock: Jewish Lights, 1999) 21 (on the Tosefta version

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of BT-Sotah 7:12). Interpreting the “perceptive heart” as a discerning mind, see Steven D Fraade, “A Heart of Many Chambers: The Theological Hermeneutics of Legal Multivocality,” 108 Harv Theological Rev 113 (2015) 122–4 & n4. BT-Eruvin 13b. BT-Yoma 9b. On Numbers 27:16–23, see Midrash Tanhuma-Pinhas 10; commentary on Numbers 27:16 in Etz Hayim: Torah and Commentary, eds David L Leiber et al (New York: Rabbinical Assembly-Jewish Publication Society, 1985, 2001) 928; Golinkin, “Is Judaism Really in Favor of Pluralism and Tolerance?” Avi Sagi, Jewish Religion after Theology, trans Batya Stein (Boston: Academic Studies, 2009) 26–33; Sagi, The Open Canon 183–9. Sagi argues that halacha puts forward only an internal tolerance within the house of study. Ibid 188. HCJ 399/85 Kahane v Broadcasting Authority, IsrSC 41(3) PD 255 (1986) (Justice Barak) 277. According to the “tolerance standard,” an outrage against public feelings must be “harsh, serious and severe” in order to justify a limit on the freedom of expression. Ibid para 11. A further example is the statutory ban on the incitement to racism discussed earlier (Israel’s Penal Law 5737–1977 §144b). Irving Greenberg, The Voluntary Covenant (New York: National Jewish Resource Center, 1982). Lenn E Goodman, Religious Pluralism and Values in the Public Sphere (New York: Cambridge UP, 2014) 17. It is relativism, not pluralism, which proclaims multiple truths and denies that one reality underlies them all. Ibid 16. Elie Wiesel, Acceptance Speech for the Nobel Peace Prize (Oslo City Hall, Norway: December 10, 1986). On US law, see Frederick Schauer, Free Speech: A Philosophical Inquiry (Cambridge: Cambridge UP, 1982). On UK law, see Eric Barendt, Freedom of Speech (Oxford: Oxford UP, 2001). HCJ 73/53 Kol Ha’am, PD (7) 871 (1953). Aharon Barak, Human Dignity (Cambridge: Cambridge UP, 2015). Horizontal and vertical application of rights is discussed in Chapter 4 and applied below to the controversy regarding WoW. Joel Feinberg, Freedom and Fulfillment (Princeton: Princeton UP, 1992) 91, 92–7, 316; Menachem Mautner, Human Flourishing, Liberal Theory, and the Arts (London: Routledge, 2018). J Christman, “Introduction” in The Inner Citadel: Essays on Individual Autonomy, ed John P Christman (New York: Oxford UP, 1989). Christina E Wells, “Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court’s First Amendment Jurisprudence,” 32 Harv Civ Rights-Civ Liberties L Rev 159 (1997). Immanuel Kant, Critique of the Power of Judgment, eds Paul Guyer and Eric Matthews (Cambridge: Cambridge UP, 2000) 5:295. Immanuel Kant, “What Does it Mean to Orient Oneself in Thinking?” (1786) in Immanuel Kant, Religion and Rational Theology (Cambridge: Cambridge UP, 2001) 8:144. Onora O’Neill, Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge: Cambridge UP, 1989) 30–1. Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard UP, 2011). Robert D Sloane, “Human Rights for Hedgehogs? Global Value Pluralism, International Law, and Some Reservations of the Fox,” 90 Boston Univ L Rev 975 (2010) 977, 1001–5. Susan H Williams, Truth, Autonomy, and Speech: Feminist Theory and the First Amendment (New York: NY UP, 2004) 52. Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard UP, 1985) 203. Dworkin, Justice for Hedgehogs 170–8. Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986) 133.

222 Positive Freedom in Expression 78 Raz, Morality of Freedom 404–5. For rejection of the intolerance of WoW, see below. 79 Steven J Heyman, Free Speech and Human Dignity (New Haven: Yale UP, 2003). See Introduction to Part II. 80 Robert Post, “Participatory Democracy and Free Speech,” 97 Va L Rev 477 (2011) 483. In Post’s words: “Democracy is achieved when those who are subject to law believe that they are also potential authors of law…. The value of democratic legitimation occurs, as Habermas and many others have theorized, specifically through processes of communication in the public sphere. [citation omitted] It requires that citizens have access to the public sphere so that they can participate in the formation of public opinion ….” Ibid 482. 81 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper and Brothers, 1948) 25. 82 Board of Education v Pico, 457 US 853 (1982); Packingham v North Carolina, 582 US – , 137 SCt 368 (2017) (Slip Op 4). 83 Pleasant Grove City v Summum, 555 US 460 (2009) 464, 474–7. 84 Free speech is also analyzed in light of power relations and arguments for equality (Catharine A Mackinnon, Only Words (Cambridge, MA: Harvard UP, 1993); Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard UP, 1987)), as indeed is relevant to the conflict regarding WoW. 85 Post, “Participatory Democracy and Free Speech,” 97 Va L Rev 478. 86 Ross, Expanding the Palace of Torah 176. 87 Greenberg, Voluntary Covenant. WoW’s interpretation of Jewish law is from within, as argued below. 88 Blu Greenberg, On Women and Judaism: A View from Tradition (Philadelphia: Jewish Publication Society, 1998) 37. 89 The petitioners to the Supreme Court represented members of various streams of Judaism: Orthodox, Conservative, Reform and Reconstructionist. On the relationship between US and Israeli women involved with WoW, see Pnina Lahav, “The Woes of WoW: The Women of the Wall as a Religious Social Movement and as a Metaphor” in Women’s Rights and Religious Law: Domestic and International Perspectives, eds Fareda Banda and Lisa Fishbayn Joffe (Abingdon: Routledge 2016). 90 In the words of Israel’s Supreme Court, the Wall is “a symbol of the sadness of generations and the desire to return to Zion … an expression of the strength and survival of the nation and of its ancient roots and eternality.” HCJ 257/89, 2410/90 Hoffman v Western Wall Commissioner, IsrSC 48(2) PD 265 (1994) (“Hoffman I”) (Justice Shamgar, para 2). 91 The partitioning at the Wall between men and women began in 1929. Patricia J Woods, Courts and Gender in the Religious-Secular Conflict in Israel (New York: SUNY, 2008). 92 The marking of the New Month has been associated with the monthly celebration of womanhood. 93 Personal accounts are offered by the women who began the WoW prayer services in Women of the Wall: Claiming Sacred Ground at Judaism’s Holy Site, eds Phyllis Chesler and Rivka Haut (New York: Jewish Lights, 2002). 94 Frances Raday, “Claiming Equal Religious Personhood: Women of the Wall’s Constitutional Saga” in Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American, and International Law, eds Winfried Brugger and Michael Karayanni (Heidelberg: Max Planck Institute, 2007) 260. Raday, who litigated WoW’s early cases at the Supreme Court, engages the issue of equality with regard to WoW. Raday 265. The horizontal duty of respect upon private parties, discussed below, is also impacted by the political power of the Haredi opponents of WoW. I thank Pelagia Goulimari for insights in this regard, and Frances Raday for comments on my analysis.

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95 A District Court required a Haredi newspaper to publish announcements of Haredi women running for office in Knesset elections, but the Supreme Court dismissed the writ on the grounds that it was given prematurely. CA 25435-03-15 Colian v Yatadot Tashmu Publishing (DCt Lod) (March 13, 2015); Request for Appeal 1868/15 (IsrSC, March 15, 2015). 96 HCJ 153/87 Shakdiel v Minister of Religions, IsrSC 42(2) PD 221 (1988) 268. 97 HCJ 257/89, 2410/90 Hoffman v Western Wall Commissioner, IsrSC 48(2) PD 265 (1994) (“Hoffman I”); HCJ 3358/95 Hoffman v Prime Minister Office, IsrSC (May 22, 2000) (“Hoffman II”); and Additional Hearing HCJ 4128/00, Director of Prime Minister’s Office v Hoffman, IsrSC (April 6, 2003) (“Hoffman III”). My discussion of these cases draws from the analysis put forward in Kim Treiger-Bar-Am, “Women’s Voices of Renewal within Tradition: The Women of the Wall of Jerusalem” in Women Writing Across Cultures, ed Pelagia Goulimari (London: Routledge, 2017). I extend warm thanks with regard to this analysis to Orly Erez-Likhovski, the current legal advocate for WoW, and to Omi Morgenstern Leissner. 98 Four Justices in a minority opinion advocated full and immediate acceptance of WoW’s petition to pray at the Wall plaza. The two religious members of the Court opposed recognition of WoW’s rights of prayer there. 99 Protection of Holy Places Law-1967, considered in Hoffman I para 54. 100 Daniel Statman, “Hurting Religious Feelings,” 3 Democratic Culture 199 (2000); Meital Pinto, “Offenses to Feelings in Israel: A Theoretical Explication of an Exceptional Legal Doctrine,” 12.2 Ethnicities 233 (2012). 101 HCJ 96/5016 Horev v Minister of Transportation, IsrSC 51(4) PD 1 (1997). 102 HCJ 806/88 Universal City Studios Inc v Films and Plays Censorship Board, IsrSC 43 (2) PD 22 (1989), affirming the “tolerance standard.” The case involved the film “The Last Temptation of Christ,” discussed above. The Court held that the Censorship Board had not satisfied the Court that the harm of offensiveness that the film threatened was a serious danger and that its occurrence was a near certainty. 103 HCJ 14/86 Laor v Films and Plays Censorship Board, IsrSC 41(1) PD 121 (1986); HCJ 316/03 Bakri v Israel Film Council, IsrSC 58(1) PD 49 (2003); HCJ 6126/94 Senesh v Broadcasting Authority, IsrSC 53(3) PD 817 (1999). 104 Hoffman I (Justice Elon) (para 26: women’s donning of tallit and teffillin permitted by Maimonides, and R. Tam and Ravad; Yonatan ben Uziel paras 28D, 29, 38: women’s prayer groups; para 27: permitting reading of the Torah if the reading is not public). Former Justice Itzhak Englard refers to the ruling under Jewish law according to the rabbinic authority of the Wall, Hoffman III (Justice Englard, para 13). 105 Hoffman I. As to respondents’ objection, see the decision’s preface, paras 5, 9. On halacha and custom, see para 28. 106 Mishnah Kiddushin 1:7. 107 Gender Equality and Prayer in Jewish Law, eds Ethan Tucker and Micha’el Rosenberg (Jerusalem: Urim Publication, 2017); Ross, Expanding the Palace of Torah 304, 326 nn12–13. 108 EEOC v Abercrombie and Fitch, 575 US (Slip Op No 14–86) (June 1, 2015). The US Supreme Court also protected as speech the donning of a jacket with an anti-war slogan in Cohen v California, 403 US 15 (1971). 109 Sahin v Turkey, 44774/98 ECHR (2005). In Israel, the regulation of the donning of a Moslem headscarf in a Christian school was discussed in 9022-06-10 Nimri v Lebanot (Schmidt Girls’ School) (Jerusalem Labor Court, 2010). 110 State Appeal 23834-04-13 State of Israel v Ras (DCt Jer, 24 April, 2013). 111 CA 23955-08-12 Radio Kol BeRama v Kolech (DCt Jer, 20 September, 2018). The petition was approved as a class action by the Supreme Court in 2015 (Request for Appeal 6897/14). 112 Justice Elon (para 29). 113 Justice Elon (paras 22, 34).

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126

127 128 129 130 131 132 133 134

Justice Shamgar (para 2). This discussion of dignity in Hoffman I is repeated in Hoffman II (para 7). Justice Levin in dissent (para 6). Justice Shamgar (para 2). Ibid. Recommendations of the Advisory Team for the Issue of Prayer Arrangements at the Western Wall, Appendix C-Draft of Proposed Amendments to the Regulations 4B(D) (Jerusalem 2016): “With regard to the southern section – (1) Local custom will be based on the principles of pluralism and gender equality ….” Hoffman I (Justice Elon) para 26 (R. Tendler); ibid R. Feinstein (“if her soul yearns to perform commandments”); ibid 28 (Israel’s then Chief Rabbi Ovadiah Yosef, approving of bat-mitzvah celebrations in good faith). Soloveitchik, Halakhic Man 99. Kenneth Seeskin, Autonomy in Jewish Philosophy (Cambridge: Cambridge UP, 2001) 69 (Torah refers to an evolving body of laws and customs). BT-Yevamot 14a (Abayye and Rava rule that differing opinions of two courts in two towns or even in one may affirm different practices). Hoffman I (Justice Elon, paras 28D–29, 39, 61). On Jewish law’s reflection of women’s changing roles, see Roberta Rosenthal Kwall, “The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study,” 34 Cardozo L Rev 609 (2012) 623. Arguably, pluralism applies in Jewish thought only within the house of study. Avi Sagi, “Tolerance and the Possibility of Pluralism in Judaism,” Iyyun: The Jerusalem Philosophical Quarterly 175 (1995) (Hebrew). Because Reform Judaism does not view Jews as bound by Jewish law, the principle of “these and those” may not apply to them. The Reform women of WoW are clearly due respect for their rights under civil law, however, and also arising from the lessons even if not from the particular rulings of the halacha. Ross, Expanding the Palace of Torah 81–2, 98. A century ago Kook considered the limiting of women’s aspiration to fulfill commandments as potential injury to their dignity. Gerald (Yaakov) Blidstein, “The Honour of the Creations (Ka-vod Ha-beriyot) and Human Dignity” in A Question of Dignity – Human Dignity as a Supreme Ethical Value in Modern Society, ed Yosef David (Jerusalem: The Israel Democracy Institute and Magnes-Hebrew Univ, 2006) (Hebrew). On gender equality and prayer, see above Raday, “Claiming Equal Religious Personhood”; Gender Equality and Prayer in Jewish Law, eds Tucker and Rosenberg. Ross, Expanding the Palace of Torah 222. A view has been argued that WoW does not bear a duty of tolerance to an intolerant position. Yossi Nehushtan, “Female Segregation for Religious Justifications: The Unfortunate Israeli Case,” 4 Droit et Religions 441 (2010). BT-Shabbat 31a. That lesson has been related to the confrontations by the opponents of WoW by Rabbi Susan Silverman, herself involved in WoW’s effort. Susan Silverman, “Just Torah: Time to Decide,” Jerusalem Post (September 16, 2016). BT-Hagigah 3b. Nahum Rakover, Human Dignity in Jewish Law (Jerusalem: Jewish Legal Heritage Society, 1998) (Hebrew) 158. HCJ 399/85 Kahane v Broadcasting Authority 277. See Owen M. Fiss, The Irony of Free Speech (Cambridge, MA: Harvard UP, 1996), considered in the Introduction to Part II and Chapter 5. Jonathan Sacks, Covenant & Conversation: Arguments for the Sake of Heaven (Korach, 5768) 28 June 2008.

Concluding Remarks

Upon the view of positive freedom, the essence of freedom is the duty of respect. The moral theories of Kant and in the Jewish tradition can be taken together, and the lessons derived can be applied in current thinking. Kant and Judaism hold that freedom is inextricably tied with obligation and, centrally, the duty to respect others. Duties of respect require relations and affirmative intent, behavior and concern. Both Kant and Judaism endorse an ethic of communication which requires freedoms of speech as well as respect to be shown to others. A normative argument can be built providing moral justification for legal values. For Kant, freedom is obligation. Kantian autonomy is positive freedom, namely the freedom to legislate the moral law. Once a person legislates the moral law, that person is obligated to it – because it is law, and because it is moral. Autonomy is defined by the categorical imperative, namely that one consider others before devising maxims for one’s own behavior. Autonomy grounds dignity, and entails the rational being’s obligation to respect the autonomy and dignity of others. I have labeled this obligation an ethic of care. Also in Jewish thought, freedom enables taking on the moral law. Freedom precedes, and also derives from, obligation. It is because humans were born free that they are able to take on moral obligation and be held accountable to it. In freedom, humans subjectively interpret and actualize God’s law. Central to that obligation and law is the duty of respect. Respect is to be shown for morality, for God’s law, and for other people. In addition to obligation arising from freedom, Jewish thought presents freedom arising from obligation. Following moral theory on freedom, rights in law may be conceptualized as adjoining duty. The positive conception of freedom supplements – rather than replaces – Berlin’s negative definition of liberty as non-interference. A positive conception of a right also augments the Hohfeldian notion of a privilege or liberty as in correlative relation to no-right. While a negative right leads to a conception of a negative duty, requiring one only to avoid hurting or interfering with others, a positive conception entails duties of affirmative respect. While negative liberty allows people to remain separate, positive freedom binds them. The right to be let alone is joined by the duty to respect other people. The significance and necessity of relations may add a layer of meaning in modern society.

226 Concluding Remarks The duty that is intrinsic to a right is not an external limit to it. Rights are bounded by duties correlative to them, but also by the duties that constitute them. Right and duty may be characterized not only as separate entities in conflict with each other, but unified – as part of a continuum. Where rights are present on both sides of a legal dispute and each holds a correlative duty to respect the right of the other, a duty of respect is also inherent in the right of each party. The respect due upon the conception of positive freedom is a standard to be upheld, in contrast to the absolute neutrality that liberalism is sometimes deemed to endorse. The rights of the individual and diversity of groups that the modern age has celebrated must continue, yet liberalism is not to fall to all-out relativism. A bottom-line value must be upheld: liberty and respect for others are fundamental duties of the free human being. Conflicts surrounding two areas of expression – involving authors, and the Women of the Wall in prayer in Jerusalem – have been studied in this light. Kant and Jewish thought hold that readers of authorial works and interpreters of God’s law are to be respected. It has been argued that freedom and obligation, dignity and respect – and right as well as duty – are to be recognized for authors and worshippers. Autonomy and dignity are universal and unconditional, and respect is due to all. The rights and duties of respect of all authors – so-called primary as well as socalled secondary authors, or users and modifiers – arise from the positive freedom of authors. All are authors. The Jewish and Kantian ethic of communication calls for relations of respect for speakers, authors and indeed all of us. For Israel, the coherence between Kantian theory and Judaism lends support to the coherence between the Jewish and democratic values defining the State. Israel is both Jewish and democratic, both individualistic and community-oriented, both particularistic and universalistic. The freedom and obligation it envisions include freedom of expression, as well as the obligation for relations of respect. Israel must champion both the right and the duty. The Women of the Wall are to be accorded freedom and respect in their efforts to pray at the Western Wall in Jerusalem. The ultra-Orthodox are protected in their freedom to worship, and have been afforded authority over conduct at the Wall. Those freedoms come with obligations: their rights entail duties of respect. Both correlative and intrinsic to their rights are duties to respect the form of worship chosen by the Women of the Wall. The values of the State of Israel, namely of Judaism as well as of democracy – influenced by Kantian autonomy – obligate the State to support WoW’s rights and the respect they are due. Affirmative respect is required by positive freedom. The active forms of support that those duties entail may include the protection of speech by so-called secondary authors (often labeled users and modifiers) and the provision of a platform for the worship of the Women of the Wall in Jerusalem. A pluralism of the voices of authors, as well as of the women in prayer at the Wall, is to be heard. In conclusion, I return to the direction outlined in the Introduction. The central value in society of freedom has been examined and an alternative conception with age-old roots proposed. Conceiving freedom as the duty of respect may aid

Concluding Remarks

227

in the formation of a common good and bind people to each other. The meaning that has been seen flattened in modern society may be enriched. Dichotomies have been shown to recede. Kant and Judaism are not as far apart as sometimes thought. For both, autonomy is obligation, and from freedom arises duty. Nor do Jewish and democratic values stand apart from each other. Universal values upheld in liberalism and in Jewish thought can function in harmony with particularity. Also too stark is the presumption that rights and duties occupy separate spheres. I hope to have shown that freedom incorporates duties and, principally, the duty of respect. While democratic liberalism is oftentimes said to focus on rights, those rights are to be understood as requiring respect for the freedom and dignity of others. With the duty of respect taken as a value, rights are to be balanced by the duty of respect they incorporate. The impact of this conception of positive freedom can, I believe, be felt in law as well as in culture. Viewing freedom as constituted by duties of respect may impact people’s understanding of their own freedom and their relations with others in society. While upon modern conceptions right is about me and duty is about you, positive freedom is about both. The two cases in view in this study exhibit these effects. The value that ought to underlie legal rules of authorship is the autonomy and dignity of and the respect due to all authors, including so-called users. Also, the value to underlie the legal authority of the ultra-Orthodox in control of affairs at Jerusalem’s Western Wall is the autonomy and dignity of all worshippers, including the Women of the Wall, and the respect that they are due. At the essence of freedom is the duty of respect.

Index

act see affirmative respect; behavior; deed actualization: of capacity 58, 62n64, 119; and expression 119, 210; of God’s law 76, 225; of humanity’s essence 6, 54, 117; of the moral law 4, 7, 32; see also potentiality; self affirmative respect: acts, intent and concern 103–10, 113–16, 200; communication and 96–7, 116–22; copyright and 188; freedom and 10, 52–8, 204–8, 211, 214–15, 226; relations of 47, 104, 110–12, 151, 225; worship and 216; see also behavior; deed angel 30, 68–9, 206 art: appropriation 185; forms of 170–1, 175–6, 180, 182; progress of 168, 187; learning 76, 166–7, 179–80, 191n47; see also copyright; expression artist see author atomistic 20–1, 36n36, 68, 97, 105, 108–10, 146; see also self attached / attachments 8, 49, 53, 105–110, 146–51; weight of 50, 101 attribution see copyright author: of life 55, 137n260; modifier as 158, 181–2, 186–88, 226; of moral law 18, 32; reader and 7, 83, 121, 184; rights of 6, 9, 144; users as 166–7; see also copyright; expression authority: distrust of 209; divine 15, 32; external / heteronomous 16–19, 28, 50, 75; legal 97, 227; rabbinic 81–3, 151, 200, 211, 216. 226; state 128n74, 153; system of 71; see also obedience autonomy: dignity and 97–8, 101–4, 152; democracy as 199; of expression 9, 122, 167, 172, 175–78, 200, 208, 210; as a Good and a Right 5, 53–4, 63n90; heteronomy and 16, 19–20, 24–5,

28–32, 75–6; moral 22, 45–7, 55, 170, 225; of interpretation 68, 79, 83–4; as obligation 43, 47–8, 53–7, 67, 121–2; perfectionism and 54–6; rationale of free speech 6, 120, 137n272, 168, 204, 208; reasoned 15; relational 105, 109, 131n148, 146–7, 154; rights of 150–2; see also freedom balance see rights and duties Basic Laws 101–2, 119–20, 153, 156, 176–7, 187, 201–2, 208, 217 behavior: affirmative 108, 113, 157, 182, 216, 225; code of 8, 11, 72, 145, 186, 188; ethical 7, 84, 103, 147; intent and 70, 106, 154; respectful 106–7, 144; see also affirmative respect; deed binding of Isaac 27, 37n54, 39n101, 67–75, 84, 111; see also command; relations capacity: ability and exercise 8, 45, 48, 54–5, 58, 98; for expression 119–21; for moral law 7, 67, 97–8, 102, 117, 143; for obligation 1, 23, 45–6, 67, 149; to reason 23, 29, 44–9, 81, 106; for universality 103 care 21, 43, 80, 97, 104, 113, 150; ethic of 47, 53, 105, 116, 146, 225; legal duty of 48, 110, 153–5 categorical imperative: care 47–8, 53; consideration of others and 103–04, 121, 146, 151, 154, 216, 225; formula 43–7, 54, 107, 143; God and 18; respect and 110–12, 216 choice 29, 109, 210; authorial 168, 170–3, 175, 178; Covenant and 68–74, 77; deliberative 44, 59n12, 119; of evil 45, 64n101; freedom and 45–7, 79–80,

Index 229 101, 118; and the Good 53, 55; life 15, 29, 50, 55, 79, 125n31; obligation and 57; see also responsibility; will civil society 143, 145–49, 155 coercion 4, 7, 51, 56, 72, 102, 117, 144 commands / commandments: divine 15, 18–19, 23–33, 57–8, 67–76, 80–1, 85, 103, 110; law as (for Kant) 29, 111; precedence of positive over negative 77, 100, 110, 126n54, 132n161, 151; Ten Commandments 27, 78, 86n2, 88n32, 113–16, 120; time-based (for Judaism) 213 communication 104–5, 145, 186–7; dialogic 9, 119, 122, 169–70, 176; ethic of 6, 8, 49, 96–7, 116–123, 157–8, 166–7, 174, 181, 188–9, 225; ethic of in Israel 204–210; as natural ends 169; see also expression; speech communitarian 47, 52, 97, 108–9 community: attachments to 110–11, 116; individual and 21–2, 33, 52, 146, 151–2, 195n122, 226; law and 145; relations in 53, 68, 97, 103–5, 117, 147; religious 84, 200, 205, 212; right and duty of 112, 148, 153, 157–8 compassion: 22, 57, 106–8; as concern 103, 113, 123; in justice 115–16; religious 200, 216; see also emotion concern: moral 21, 215; in respect 106–110, 113–16, 154–5, 182, 188, 200, 225 consent: myth of 28; to the Covenant 72–74; universal 83 consideration: of the other 20, 47, 53, 103–6, 112, 121, 144, 147, 151, 156; moral 85; in decision-making 108, 110, 154–5, 217; of fair use 182, 186, 188; public 174, 210 copyright: creativity 172, 179; fair use & fair change 155, 167, 174, 181–6; honor 176–8; moral rights of integrity and attribution 171, 173, 175–8; reasonableness 178, 181–6; transformativity 158, 171, 179–86, 188–9; see also author Constitution / constitutional: Court 125n40, 127n67; 164n100; Covenant as 77; principles and systems 10, 15, 21, 56, 99, 101, 119, 155, 158; Israeli 158, 199, 203, 208, 217; UK 148, 155, 158; US 144, 152, 168–9 Covenant 21, 23, 68, 147, 206, 210; binds God 26, 77; changes 82–3; partnership

16, 29–30, 67, 71–6; relational 33, 58, 77, 111, 121–2, 152 custom 7–8, 84, 159n10, 186, 212–14, 224n119 deeds: compassion in 216; good deed 58, 68, 135n214; intent and concern and 70, 96, 104, 107, 109–110, 116, 123, 216; religion of 88n32, 113–14 democracy / democratic 10, 22, 28, 99, 152; leveling 98, 125n26, 181; participation 157, 209; rationale of free speech 6, 137n272, 168, 208–10; see also Jewish and democratic; liberalism deontology / deontological: copyright models 167–69, 188–9; dignity and 99, 125n32; duty / right 48, 53, 58, 119, 149; rationale of free speech 120, 208, 210; teleology and 5–6 dialectic 29, 67, 69, 72, 74–7 digital 209, 166, 171, 175, 180, 188 dignity: authorial 174–7, 188; autonomy / freedom and 104, 117–21, 201; equality and 202–3; respect and 8–9, 33, 103, 109–10, 144, 226; of the self 110, 169, 187; of the other 47, 52, 107–8, 123, 147, 154–5, 213, 225; speech and 200, 218, 157–8; transcendence and 59n2, 98, 106; as worth 96–100, 102, 106; weight of 99–101; see also autonomy; honor duty 32, 97, 203, 218; to the common good 152–3; community’s 112, 148; of education 58, 148; fair use and 182, 186; and the Good 18, 54, 105; to the law 48, 143; moral 25, 46, 70, 106, 109, 114, 144; to oneself 44, 49, 55, 171; positive 153–5; to speak 157; see also affirmative respect; care; right and duty Eden 78–9, 173 education 18, 28, 150, 181; commandments and 25, 70; childhood 17, 58; right to and obligation of 148, 153, 201 emotion 103, 106–10, 114–16, 132n155, 209; of joy 57, 116 encumbered see self epistemology / cognition 20, 59n2, 206 equality 6, 55, 73, 98, 123, 154: democracy and 7, 15, 145, 199, 217; gender 10, 36n36, 210, 214, 222n84, 224n119, 224n126; Israel and

230 Index 201–03, 214; reason and 20, 44, 47; speech and 120, 157; see dignity, image equity 82, 85, 115, 144, 197n184, 202 ethic see care; communication; interpretation; moral Europe 9, 43, 69n127, 125n26, 167, 199, 203 European Court / Convention 156–7, 168, 213 Euthyphro dilemma 26, 33, 78 expression: authorial 97, 118, 153, 158, 166, 167–72, 174–5, 184; creative 117–18, 172, 176, 178–80, 183; and communication 9, 123, 156, 208; respect in 97, 169; rights and duties of 151–8; Talmud and 94n162, 121; of worshippers 158, 210, 213; see also freedom existential see freedom faith 32, 68, 70, 75, 81; rational faith 17–18, 108; reason and 15–16, 19–20, 22–3, 27–8; see also good faith feminism 47, 52, 97, 105, 108–9, 189n1, 209, 211 freedom: bounds on 52, 76–7, 84–5; copyright as 174–88; dignity and 96–7, 102–3; duty and 16, 29, 32, 53, 149–50, 207; existential 45, 53, 57, 146, 149; of expression 6, 49, 116–20, 155–6, 158, 168–9, 213–14, 216–17; obligation and 71–2, 143–4; obligation’s essence 8–9, 11, 15, 33, 218; positive and negative 4–5, 46, 54–5, 144–54, 200, 225; of interpretation 69, 81–4; passion for 53, 162n54; of thought 39n104, 117, 134n119; threats to 50, 56 global 10, 53, 97 God 15, 19, 96–100; commandments of 28, 67, 71–5, 79, 81; existence / proof of 17–8, 27–8; freedom of 26, 77–8, 102; justice of 113, 115; law of 22, 24, 26–32, 58, 68, 76–85, 145, 225–6; moral law and 22, 72, 145; names of 21, 30, 115; partnership with 16, 75–6, 120; respect for 103, 110; transcendence / otherness of 9, 23, 29–32, 41n125, 77–8; will of 31–3; word of 84, 172–3, 205–6, 215; see also image; world good 4–5, 26; common 5, 52, 57–8, 68, 109–11, 143, 146–57, 227; conceptions of 51, 55; highest 18, 64n98, 105;

life 5, 11, 44, 50, 54; will 5, 54, 82, 106; a telos 32, 54–5; see also right; deeds good faith 152, 155, 182, 186, 217 hate speech see speech heteronomy see autonomy holiness 6, 39n94, 113–14, 127n56; become holy 4, 58, 111; holy site 200–1, 211–13 honor: social 73; status 96–100; universal 100–103, 123; see also copyright horizontal: reciprocal / bilateral and 143, 149, 151–3, 156–8, 167, 187; vertical and 97, 103, 110, 123, 187, 208, 214–16 ideal 9, 25, 31, 79. 84; democratic 199–200, 204; kingdom of ends as 4, 6, 47, 55; moral 8, 45; personality 58, 118 image: creation in God’s 21–3, 36n47, 75, 78, 81, 170, 204; dignity and 99–102, 113, 115, 120; equality and 60n17, 211, 215; graven 39n93, 172 immanent see transcendent instrumental: common good as 147; copyright as 168–9, 188–9; expression rights as 167; the Good as 119, 131n143 integrity see copyright intellect: divine 23–4, 31; liberty and rigor 81, 116; perfection of 4, 22–4, 44, 48, 58, 81; see also reason intent: affirmative respect and 96, 103–4, 106–10, 123, 154, 182, 188, 200, 216; of duty 68, 70–1, 113–14; as mindset 113–16 interpretation: of biblical narrative 71–3, 75–6, 113; divine law 10, 79, 81–4, 170, 179, 184, 205, 210–11, 214–16; ethics of 84–5, 116, 155, 159n3, 226; of God’s command 69–72; legal 56, 101, 144, 177, 188, 203; multiplicity of 200, 215; by readers 7, 83, 118, 121, 167, 184–5, 210; see also autonomy, pluralism intertextuality 178–81 Jewish and Democratic: state 22, 156, 158, 200–2, 204, 216–17; values 9–10, 199–201, 203–4, 210–1, 214, 217–18 justice: Israeli law on 201–2, 204; Judaism on 21–6, 57, 82, 113–15, 151; universal principle of 7, 15, 44, 55, 107, 144–5, 149, 199

Index 231 law: capacity for 4, 7, 67, 97–8, 102, 117, 143; moral 9, 18, 25–6, 29, 32–3, 46–8, 53, 71, 105–7; and morality 10–11, 24, 56, 143–7, 225; rabbinic 75, 85, 103, 122, 150, 174; respect for 48, 107, 159n1; see also God; interpretation; Oral liberalism 9, 20, 109; social liberalism (New Liberals) 52, 147; democracy and 5–7, 11, 15, 43, 50, 67, 144–5, 200, 207, 226–7; perfectionism and 4–6, 11, 52, 55–6, 147; pluralism and 209; see also neutrality liberty see freedom love: 21, 106, 202, 206; God and 32, 86n8, 87n18, 116, 134n199; one’s neighbor 103, 113; practical 107–8; see also emotion meaning: of biblical texts 81–3, 184, 205; lent by attachments and obligation / duty 101, 146–7, 151; of relations 112, 116, 225–7; freedom and 7, 9, 11, 53, 57–8; and message 9, 183–4; readers and 83, 184–6, 210; of a work 183–6 mercy 25, 71, 82, 113–15, 151, 205 moral 24, 44, 56, 98–9; and ethics 5–9; feeling 106, 108, 124n16; God and 26–7, 72–4, 78; obligation / duty 17–18, 45, 48, 71, 109, 225; political morality 56, 144, 164n101; reason 19–27, 45; respect for 77, 103, 216; see also autonomy; copyright; law mutuality 104–5, 107–9, 151, 198n194, 214, 219n9 neutrality 5–6, 55–6, 97, 207, 209, 215, 217, 226 noumenal 18, 29, 98, 105, 206 obedience / obey 19, 25, 29, 52, 68–75, 85, 97, 146 obligation: of respect 8, 49, 102–4, 108, 112, 122–3, 153, 208; weight of 101, 146; see also autonomy; freedom; moral Oral Law 82; Written Law and 42n150, 96n119, 151; see also law other see God; relations; self oven of Akhnai 82–5, 111, 207 partnership see Covenant; God particularity 9, 98, 131n138, 203, 217, 227; see also universal

perfectionism 44–5, 49–50, 99–100, 117, 119; and the Good 4–5, 53–8, 147; see also liberalism pluralism: of rationales of free speech 204–10, 213–5, 218; of “these and those” 84, 105, 205; truth and 208–9; of voices 6, 123, 144, 189, 199–200, 213, 226; see also tolerance postmodern 9, 83, 118, 180, 184, 209 potentiality 4, 36n47, 44, 58, 62n64, 119, 143; see also actualization; capacity prayer see expression; affirmative respect; speech proportionality 156, 163n80, 217 prophets see speech reader see copyright; interpretation reason: autonomy and 15, 145; emotion and 106, 115, 132n155; expression and 48–9, 55; freedom and 46, 117; as human nature 6, 23–4, 48–50, 54, 119, 145; moral 8, 22, 24–6, 46, 106; religion and 16–19, 22–4, 26–8, 32, 74, 108; universal 20, 22, 26, 29, 47–8, 104 reasonable see copyright rebellious elder 85, 94n162, 138n295 relations 15, 146, 154–5, 172, 225; in expression: 116, 121–3, 156–8; with God 30, 68–69, 111–12, 152, 216; of respect 5, 9, 96–7, 102–10; sociability 105, 121–2; two-term / three-term 29, 70; richness of (in Judaism) 57–8, 80, 90n67, 116, 147–8, 151; see also affirmative respect relativism 6, 207–09, 226 respect see affirmative respect; dignity; obligation; relations responsibility: in choice 77–9, 97, 111–12; covenantal 79–80; in expression 116, 122, 156–7; to fix the world 75–7; freedom and 80, 85, 149; in relations 70, 77, 97, 111–12, 116, 147–8, 154; in use of rights 5, 149, 186 revelation: faith and 19, 22, 28; interpretation of 81, 206; preparation for 72, 74; reason and 27 reversals: creative influence 180; of culpability and intent 114; of dignity and disrespect 103; God’s holiness and human action 113; law and responsibility 144, 159n5, 188; in order of analysis 25, 33, 67, 110 right and duty: balance of 152, 155, 157, 187–8, 212, 217, 227; correlativity and

232 Index intrinsic relation 5, 57, 96, 143, 149–53, 167, 215–16, 226; in expression 155–8; human rights and duties 99, 109, 151, 153, 169, 199, 203; priority between 5, 148–51 Right and Good: 5–6, 32, 188, 202; shift and threats 50–8; and common good 147–9, 152–3 rights: limits on 143, 149, 151–2, 157, 226; limits on free speech 209, 217, 221n58; limitations clause 156; rhetoric of 67, 143, 148–9, 164n101; socio-economic 65n117, 110, 148, 153, 198n195; see also freedom of expression; horizontal sacrifice see binding of Isaac self: inner / true / real 43–4, 48–51, 55–6, 92n105, 119, 169; and other 9, 32, 57, 69, 180, see also God slavery: 45, 71–4, 77–8, 128n87 speech: hate speech 157–8; negotiations with God 121, 170, 204; of prophets 81, 121, 157, 172; by women in prayer 210, 213–17; see also freedom; autonomy, truth and democracy rationales standing: at Sinai 76; legal 99, 101, 125n38, 164n98; see also weight Tabernacle 31, 99–100, 115, 121, 172, 179 teleology: copyright and 189n3; and the Good 54; perfectionism and 54–5, 58, 99; suspension of the ethical 69, 112; telos and 22, 87n18; see also deontology Temple 135n223, 172, 179, 207, 211 “these and those” see pluralism

tolerance 96, 207–9, 214–15, 217 trust see truth truth 81, 115, 217; fragmented 83, 215; prism of 205–8; as trustworthiness 27, 122; rationale of free speech 204, 208–10, 137n272; see also pluralism uniformity 85, 115, 204, 207–10 universal: communication 121–2, 171; dignity 100–2, 158, 226; duties 49, 149, 153; law 35, 45–46, 55, 103–4, 107, 144; maxims 47, 53, 105, 108, 216; norms 7–8, 51, 146, 202; particular and 16, 18–22, 48, 78, 110, 147, 188; reason 24, 26, 29, 206; values 217, 227, 27; worth 96–9 value: law and 153–5; see also Jewish and democratic vertical see horizontal virtue 50, 159n3; development of 4, 44, 50, 55; duty 171, 207; see also emotion will: freedom of 9, 45–7, 79–80, 84–5, 104–5, 145; joining of 31–2 wille / willkür 45–7, 51, 105–6 wisdom 15, 115, 173, 179, 200, 205 women: prayer practice 10, 84, 90n65, 97, 123, 144, 189, 199; voices 121–2, 205; of the Wall 158, 200, 207, 210–18, 226–7; see also equality world: creation 66n134, 76, 80, 120, 179, 206; repair 6, 58, 76–9, 179; see also God worth see dignity Written Law see Oral Law