Mark Washofsky

At first glance, the halakhah would seem to offer little usable guidance on this subject. We are speaking, after all, of how modern, secular states might respond to the challenge of terrorism, and the halakhah, rooted as it is in ancient and medieval religious texts, is neither modern nor secular. It is well known, moreover, that individual “rights” and“liberties” are concepts foreign to the Jewish legal tradition, which tends instead to speak of the duties and obligations that the individual owes to God and Torah .’ To the extent that the major halakhic compendia speak directly to the issue of national emergency, they grant extraordinary, virtually unlimited powers to the governmental authorities.’ This surely does not aid us in the quest for “balance” between the conflicting requirements of individual freedom and national security. Still, the inquiry is a vital one that deserves our careful attention, for the following reasons:

1. Given that Judaism is a religious tradition that expresses itself largely through practice and observance, halakhah is absolutely central to any understanding of the Jewish experience. The intellectual and rhetorical discourse by which Jews have historically arrived at their understandings of correct practice— the answer to the question“what does Torah/God require that we do?”— is the language of Jewish law, crystallized in the halakhic literature. If, therefore, Jewish tradition offers teaching, guidance, and direction on issues of political practice, we are likely to discover that instruction by studying the halakhic sources. To put this another way, any authentic Jewish approach to questions of torture and terrorism, to the conflict between personal liberty and communal security, must be rooted in the halakhic literature and tradition.’

2. The fact that Jewish law speaks in terms of“duties” rather than of“rights” does not mean that the latter concept is entirely foreign to halakhic analysis. The existence of a legal duty can be said to establish a corresponding expectation(=“right”) by others that the duty will be performed. For example, the obligation imposed upon a court to“do justice,” to conduct its inquiry in accordance with clear rules of evidence and procedure, is tantamount to a“right” to due process of law. Similarly, although Jewish law does not know of a formal“right to privacy,” it does define excessive prying into the domain of another person as a tort(hezek re'iyah, literally“damage caused