Internet, Privacy, and Progressive Halakhah

and political values that underlie the modern liberal state, mishpat ivri has largely affirmed those values, seeking to demonstrate their compatibility with the Jewish legal tradition. Much of Rakover’s own writing, including his work on privacy, can be fairly characterized in this manner.*® For all that religious ideology may divide us— the mishpat ivri scholars are in the main Orthodox rabbis or yeshivah graduates who have gone on to attain formal legal training— they and we share much in common. To make Jewish law for a modern Jewish state requires an interpretive approach to the sources that, to a great extent, is affirmative and accepting of the liberal political, moral, and social values that lie at the foundations of that community.

At any rate, Rakover’s treatment of privacy strikes me as an example of a“progressive” reading of the halakhic literature, and my goal here is simply to argue for an adjustment in his theoretical structure. Specifically, where he cites four fundamental principles as the basis for his claim of a general halakhic value of privacy, I

would reduce that number to one: k'vod hab’riyot, or“human dignity.” 1 do this for two reasons. First, in my view k’vod hab'riyot takes logical precedence over the other principles that Rakover invokes. A substantive conception of the dignity of the individual human being is a necessary theoretical precondition for those principles. The affirmation of k'vod hab'riyot provides sense and purpose to them; it explains why we should love our fellow human beings, treat them with respect, and avoid deceit and duplicity in our dealings with them. One could respond, with no little justice, that the principle b’tzelem elohim,“humans are created in the divine image,” would serve the same end. There is indeed a significant conceptual overlap between b‘tzelem elohim and human dignity. It has even been suggested that k vod hab'riyot is simply the Rabbinic restatement of the Torah ’s doctrine that mankind is fashioned in the image of God. *” This brings me to my second reason for favoring“human dignity” as the central principle undergirding the privacy value: k vod hab'riyot is a legal as well as a moral principle. While b'tzelem elohim, along with Rakover’s other principles, occurs in the Rabbinic and