Internet, Privacy, and Progressive Halakhah

therefore that the traditional Jewish religious mind recoils from the strictly literal reading of the maxim“great is human dignity, on account of which a negative precept of the Torah may be set aside.” As we have seen, the Talmud already takes pains to limit its application to Rabbinic(as opposed to Toraitic) mitzvot. Later poskim, who display the same conservative mindset, are not likely to criticize the positive halakhah, let alone to overturn it, as “unethical” or as injurious to higher moral values. On the contrary, their general inclination is to presume that the existing rules and norms of the halakhah cohere with the standards of“human dignity” and do not violate them. Thus, while they occasionally cite“human dignity” as a halakhic argument, they do so in a highly limited and selective way, restricting the principle’s sphere of influence to the margins of the law. Blidstein’s second explanation is a more technically legal rationale: practical halakhic discourse, by its very nature,“does not like general principles.” Halakhists have historically preferred to base their decisions upon clearly delineated, authoritative rules rather than upon general and

abstract principles, the definition of which is subjective and the scope and substance of which must be determined in every individual case. Indeed, the fact that the Talmud leaves gadol k'vod hab’riyot in a state of abstraction, neither defining it substantively nor developing it into a complex and detailed body of legal instruction, indicates the principle’s marginal status in the world of actual halakhic deliberation.

Blidstein’s conclusion, if correct, raises a potentially significant difficulty for our project here. How can we rely upon k’vod hab riyot(or, for that matter, any and all of the other principles that Rakover cites) as the theoretical basis for the establishment of a halakhic value of personal privacy when, historically considered, it has played such a modest, restricted function in Jewish legal thought? I do not seek to refute his argument, which is persuasive as far as it goes. At the same time, I do not think that either of the two rationales he offers for the relative weakness of“human dignity” as a principle of halakhah presents us with an insoluble problem. His theological rationale, first of all, is not especially