The Concept of Human Rights in Judaism

In contemporary Western societies, human rights encompass a broad constellation of material moral needs and interests that are guaranteed to all people simply by virtue of the fact that they are people.1 Religious and normative traditions, including Judaism and Jewish law recognize and protect many of these currently accepted human rights.2 Indeed, religious legal traditions tend to be rather good at respecting and enforcing a broad range of material human rights and material human dignity. As explained below, Judaism recognizes the inherent equality and dignity of all people; respects natural liberty and autonomy; protects rights to life, bodily integrity, health, property, education, basic food, housing, and healthcare; and provides important legal rights closely resembling contemporary ideas of due process in the courts. One might even argue that religious traditions are more effective than modern, secular state systems at ensuring many basic material human needs because religious traditions are not mired by bureaucracy, political concerns, and commitments to various forms of free-market capitalism which leave significant segments of society vulnerable and without basic human needs like adequate food, housing, healthcare, and education.

Where religions often do a poor job at protecting human rights – and where modern states and non-state organizations tend to better succeed – is in the realm of recognizing and protecting less tangible, inchoate rights, especially the range of rights associated with freedom of religion, conscience, association, and the right to dissent from prevailing societal norms and values. One of the core human rights widely recognized by states and international conventions is the right to freedom of religion, and more particularly, the right to freely choose to not practice or believe in a particular faith, or any faith at all. The United States Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”3 The Commonwealth Charter of Human Rights, a non-binding aspirational statement of normative commitments adopted by over thirty Commonwealth countries, likewise affirms a commitment to religious freedom as an essential expression of human freedom. It states: “We emphasize the need to promote tolerance, respect, understanding, moderation and religious freedom which are essential to the development of free and democratic societies, and recall that respect for the dignity of all human beings is critical to promoting peace and prosperity.”4 The United Nations’ Universal Declaration of Human Rights similarly affirms that “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”5

Religious freedom, as John Witte has put it, embraces “the principle of liberty of conscience by foreclosing government from coercively prescribing mandatory forms of religious belief, doctrine, and practice.”6 This principle, however, is not often associated with normative faith systems.7 Yet, a large part of what makes religions what they are is their strong normative claims about correct practice and dogma to the exclusion of all others. Even when religious leaders do acknowledge the possibility that practitioners of other faiths may be believing and worshiping in a way that is essentially legitimate, such tolerance does not typically extend to members of their own religious communities that express dissent and autonomy in belief or practice by rejecting prevailing norms.8 Religions, especially nomos-centric faiths in which religious virtue is measured principally in terms of one’s conformity to a wide-ranging and comprehensive set of behavioral norms, prescribe correct and unacceptable modes of conduct in both public and private life. The scriptures and teachings of such traditions, moreover, typically include a wide range of penalties and consequences – some imposed by temporal religious authorities and others by God – for religious infractions. Often, harsh punishments are prescribed for those who leave the faith expressing heretical or blasphemous ideas or who convert out by affirmatively adopting the tenets and practices of another religion.9

This article explores the practice of religious freedom within the rabbinic legal tradition.10 It focuses on the extent to which rabbinic law – despite being a system of religious standards that makes strong prescriptive claims about exclusively correct practices and beliefs – has recognized the right of Jews to autonomously dissent from settled religious norms without attempting to coerce conformity and compliance with Jewish law. While rabbinic law makes strong assertions about correct religious practice and belief, and unabashedly affirms that Jews are obligated to observe such standards, it generally does not seek to coerce members of societies regulated by Jewish law to uphold their purely personal religious obligations. Instead, Jews living in Jewish communities governed by rabbinic law and rabbinic decisors are left free to be as religiously observant or non-observant as they wish. Social or formal legal sanctions were traditionally brought to bear only – though not always – if individual dissent from rabbinic laws threatened the well-being and cohesion of society or caused material harm to other individuals. This article uses several examples from various areas of rabbinic law to show that in practice rabbinic jurisprudence creates substantial space for religious dissent and religious freedom even within the confines of a rabbinically-regulated religious society.

This paper has five sections following this introduction. The next section reviews general human rights in Judaism without a sole focus on religious freedom. The next section dives into the legal sources of human rights in Judaism. The third and fourth sections explore the relationship between law and enforcement in the Jewish tradition, both civil and criminal. The fifth section synthesizes sections two, three, four and five into a grander theory of religious freedom in the Jewish tradition.

1 Human Rights in Judaism – General Overview

Many scholars have noted that Judaism does not speak in the language of rights – human rights or otherwise – and instead couches norms in the language of duties and obligations.11 Nevertheless, the norms and values of Jewish law evince a strong commitment to many of the core protections typically enshrined in Western human rights discourses, and in some cases, the rabbinic tradition goes further in its robust respect for human life, health, property, and dignity.

The principle of inherent individual equality, which forms the necessary moral and logical starting point for any complex system of universal human rights, is enshrined in the Mishnah, the foundational second-century text of Jewish law that reflects the sum of rabbinic thinking over the previous several centuries.12 The Mishnah ponders the reason God created only a single human being from which the human race would descend; why not create an entire population of human beings from the very beginning? The Mishnah responds: “In order to better ensure peace among people; so that one person will to be able to say to another, ‘my father is greater than your father’.”13 Instead, in the Jewish tradition, every human being ultimately traces his or her lineage to a single common ancestor; nothing makes any one person essentially different or better or more entitled to respect and rights than any other. This basic human equality is expressed in the biblical expression of the Golden Rule, “Love your neighbor as you love yourself,” which the second century scholar, Rabbi Akivah affirmed is “a great and important principle of the Torah.”14 Similarly, in explaining why God required an annual census of the Jewish population, R. Yitzchak Arama (d. 1494) states: “They [individual members of the nation] were not like animals or inanimate objects; each one had an importance of his own like a king or priest […] for they were all equal and individual in personal status.”15

At the very beginning of the book of Genesis, the Torah affirms that there is something essentially special and significant about human beings, and that this specialness correlates to human beings having certain fundamental rights and duties towards each other.16 When the Torah describes God’s creation of human beings, it records God as saying, “And God created the human species in his image; in the image of God He created it; male and female He created them.”17 This theme – that human beings were created in the divine image – features prominently in rabbinic law and thought. While scholars have offered myriad explanations of what it might...