94 Mark Washofsky
dignity” or“the individual's moral right to shape his own destiny.” This principle, by supplying a common element to the law’s existing provisions, enabled the authors to posit a right to privacy, despite the fact that the existing law did not mention such a right explicitly. It supported their narrative of a legal tradition that gradually but surely evolved from a concern for protecting the individual against physical damage toward the recognition of a need to protect his more“spiritual” interests, reflecting a conception of the nature and purpose of social life and of the individual's place in it. The right to privacy, in turn, began to function in the same way that any real, substantive legal principle functions. as a tool with which lawyers can address new cases and situations not explicitly covered by existing legal protections. The Warren-Brandeis thesis has been subjected to various criticisms, which is certainly understandable: constructed propositions of this sort rely upon arguments that are inherently controversial. Still, the degree to which the concept of“a right to privacy” has gained wide acceptance in our society is evidence of the success of Warren and Brandeis and their followers in proving their point.
The recent history of scholarship in Jewish law tells a similar story. In much the same way that Warren and Brandeis move from specific legal provisions to posit the existence of a general principle, some students of the halakhic tradition point to existing provisions in the halakhah as evidence for a substantive Jewish legal value called“privacy,” even though the legal sources do not expressly mention such a value.”
Among the“existing provisions” are the following. 1) The prohibition against unwarranted trespass into a