which Jewish tradition may already have spoken? I will suggest that it does, and I will argue that this new sort of challenge requires liberal Jews to rediscover the relevance of some old Jewish values that, perhaps, they once dismissed as outmoded in a modern context.
Privacy as a Constructed Value in American and Jewish Law.
The“right to privacy,” so familiar in the discourse of secular law, was constructed by jurists out of the sources of the American and common-law legal traditions. To say that a legal rule or concept is “constructed” is, potentially, to make two claims, one descriptive and one normative. The descriptive claim notes that, as a matter of fact, the legal value in question is not mentioned explicitly in the community’s legal tradition but has been interpreted into existence by lawyers or legal theorists. The community in fact speaks of this value and considers it part of its law precisely because the scholars have constructed it out of the legal sources deemed authoritative by the community. The normative claim asserts the systemic legitimacy of this process of construction. It is entirely proper, that is to say, for lawyers, judges, and other legal actors to perform such interpretive operations upon the legal texts and sources so as to argue for the existence of rules, principles, rights and duties not explicitly mentioned therein. Their argument may or may not succeed; the fate of a particular effort at legal construction rests, as does that of any legal argument, upon its persuasive force in the eyes of the legal community, its target audience. Still, those who advance the normative claim hold that such arguments can and often do persuade and therefore succeed in establishing the implicit existence of the concept in question.
If we say that Jewish law values or protects individual privacy, we do so on the basis of such a process of construction. Although the Biblical and Talmudic sources of the halakhah do not refer explicitly to a concept of“privacy,” modern scholars of Jewish law have argued for the implicit existence of that concept in the halakhic tradition in much the same way that American jurists