Internet, Privacy , and Progressive Halakhah 101 —————————————————————————————————————— ee teers ee ee Aeneas
growth and expansion, so that halakhic authorities might address cases and challenges unprecedented in the sources.
To summarize: Nahum Rakover is one example of a Jewish legal scholar® who relies upon a fundamental principle or principles of Jewish law in order to derive, from various existing provisions of the law, a general“protected value” of privacy in the halakhah, a value that encompasses but is distinct from those provisions. This move reflects the Warren-Brandeis interpretive approach as opposed to a reductionist, Prosser-like reading of the halakhah: the totality of Jewish legal teaching on our subject cannot be limited to those provisions stated explicitly in the sources. Rather, when viewed through the interpretive prism of the fundamental principle, those explicit provisions testify to the presence of the more general, contextual value of privacy. In turn, that value becomes a tool which judges can apply to derive guidance in future cases raised by“changing reality” and“prevailing human sensibilities.”
As one engaged in the study and practice of“progressive halakhah,” 1 find Rakover ’s findings and his methodology to be congenial and persuasive. In saying this, I do not mean to call Rakover a“progressive halakhist”; indeed, as an Orthodox rabbi, he would presumably reject that label. My point is that there is a clear affinity between his work, in both its substance and methodology, and our own. With respect to substance, the determination that halakhah recognizes a value of individual Privacy accords with progressive beliefs about the content and the ends of Jewish religious law. True, not all self-proclaimed progressives will define privacy in the same way. Take, for example, the issue of gossip. While many of us undoubtedly regard 80ssip as inimical to personal privacy— and keep in mind that the traditional prohibition against gossip is critical to Rakover ’s derivation of a more general halakhic value of privacy- some Progressive thinkers defend it on liberal grounds as a benign or