132 Mark Washofsky disparagingly of him. See B. Arakhin 16b, Yad, De ot 7:4; and Kesef Mishneh ad

loc.

75. Holekh rakhil m'galeh sod; Proverbs 11:13(and see M'tzudat David ad loc.).

B. Yoma 4b on Leviticus 1:1(bal yomar).

76. Rakover, note 57, above. On the Chok haganat hap'ratiyut, see note 40, above.

77. Rakover(note 57, above), p. 30. The parallels and similarities between Rakover’s interpretive strategy and that of Warren and Brandeis raise the obvious question: was he in any significant way influenced by their essay? It is, of course, impossible to establish this with certainty on the basis of his text. What we can say is that he was keenly aware of those authors’ contribution to the development of

privacy law in Western thought. He cites Warren and Brandeis in his very first

footnote(p. 13) and, at somewhat greater length, on p. 18, where he(like many of the legal scholars we have surveyed) credits them as the authors of the very notion of a legal right to privacy. We can also point to his affiliation with mishpat ivri(see below in text), the academic law-school movement that re-frames the halakhic tradition into categories recognizable by and common to other legal systems. Accordingly, Rakover might well be open to utilizing the trends and currents of academic jurisprudential thought, with which he is clearly familiar, in the analysis of specifically halakhic questions. Again, one cannot say for sure, but it’s always fun to speculate!

78. To be sure, we might conceive of slander as the sort of“damage” to interests that pertain to what Warren and Brandeis called“man’s spiritual nature,” although there are difficulties with such a move in Jewish law. R. Yisrael Meir Kagan, the author of the pre-eminent halakhic treatment of prohibited speech, explains why: slander(lashon hara) differs from all other kinds of damage in that it is forbidden in principle(/’khatchilah): one is forbidden to utter lashon hara regardless of its material consequences. Other actions that cause“damage” are problematic only after they have taken place(b'di‘avad), when the damage has occurred. The practical legal difference here is that one who commits lashon hara is liable even for g’rama, damages that are indirectly related to his slander. Ordinarily, one is liable only for damages that are the direct result of one’s actions. See Sefer Chafetz Chayim, Hilkhot R’khilut 9, in the commentary Ber Mayim Chaim at the beginning of the chapter.

79. As Rabbi Avraham Yitzchak Hakohen Kook explains the difference:“the prohibition of tale bearing is not to be defined as a species of tort; its basis rather is found in the prohibition of evil speech... One who speaks so as to insure that his