האם היהדות מכירה ב"זכויות אדם"?

WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness--that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..."
These words from the American Declaration of Independence are the foundation of American political theory. Our present interest is the stress placed on rights--inalienable rights--to life, liberty and the pursuit of happiness. The sole function of government, according to the Declaration, is to secure these rights for the governed. These rights are inalienable; under normal conditions a citizen cannot lose these rights.
This emphasis upon rights leads to two conclusions, one political and one social. The political conclusion is the value of freedom. Laws and institutions should be structured so as to maximize individual freedom so that the exercise of rights is protected. The social consequence is the value of tolerance. A social system which gives prominence to individual rights and freedom may be expected to result in considerable variation in life-style. In order to preserve social harmony, people must accept others' differences.
The rights described generally in the Declaration of Independence and guaranteed in the Constitution have one very important characteristic in common: They are rights to non-interference. Life, liberty and the pursuit of happiness; free exercise of religion, speech, press, assembly, petition; security of person and property against searches and seizures; abolition of slavery; the right to vote --all are designed to allow the individual freedom of action unhampered by governmental interference. The right to life, for example, prohibits government and private citizens from arbitrarily eliminating their opponents. The right to pursue happiness prohibits government from imposing its idea of happiness, or its preferred means of achieving happiness upon unwilling individuals. Security of property protects the individual against theft or governmental seizure.
These have been called negative rights-- rights to be left alone, to do as one pleases. Of course, all these rights are limited by the need to respect others' exercise of the same rights. One person cannot use his right of free speech to shout down someone else. One important function of government is to devise rules which allow for maximum exercise of rights to free action by all members of society, and to enforce those rules.
Understanding these rights negatively is important, because sometimes a quite different idea is expressed using the same word. We may hear of a "right" to free education, to a minimum wage or a minimum standard of living, or to free medical care for the indigent. It should be clear that these examples are worlds away from those of the Declaration and Constitution. The "right" to a free education is not a matter of non-interference or of being left alone to do as one pleases. On the contrary, it is a "right" to claim society's support for a service. Since society is composed of one's fellow citizens, it means a claim to their resources for that service. (Of course the taxes to pay for schools will be levied on the society generally. But there will be those too poor to pay, and still their children will get free schooling. And in general the amount paid in taxes will not be proportional to the number of children in school.) The same is true for a minimum wage, standard of living and medical care: All are claims on someone else's resources for those services.
The importance of the difference between the last-mentioned claims, on the one hand, and rights to non-interference on the other, can be illustrated as follows. Imagine a foreign policy decision to aid only those countries which do not violate basic human rights. The intention is to exclude dictatorships and tyrannies from U.S. aid. Of course if a government imprisons or exiles its political opponents, censors newspapers, forbids opposition parties, or prohibits the practice of certain religions, it is clear that it does not qualify for aid. However, suppose the complaint against a government is that it does not provide free schooling, or social security, or free medical services to the poor. Shall we say that it violates basic human rights--that it is a dictatorship or tyranny because it does not provide these services to its citizens? Clearly this is going too far. We may feel that it is good for governments to provide these services. We may even feel that they ought to do so, and that their social policy is morally deficient if they do not. None of this qualifies them as dictatorships or tyrannies. The reason is that so far they are not interfering with their citizens' rights to be left alone and live as they please.
Thus the basic human rights which are inalienable and form the foundation of government are negative rights of non-interference. Notice that we are not speaking of legal rights. The Declaration of Independence was meant to justify removing one form of government and replacing it with another. Rather, it is moral rights that are at stake. The Declaration asserts that people are morally entitled to exercise all those rights necessary to insure life, liberty and the pursuit of happiness. Therefore a government's record concerning these rights can be used to justify or criticize that government.
Considering how fundamental these rights are, one might expect them to have top priority in our legal system. Surprisingly, this is not the case. There is a different value for the sake of which rights are regularly sacrificed. This value is social welfare. Rights are restricted, or even denied, when their exercise is seen to jeopardize the social good. I will first argue for this claim via examples. Then I will mention a possible explanation. This will be followed by an examination of Jewish sources on the subject of rights.
Here are four examples of the sacrifice of rights for the sake of social welfare.
(1) The graduated income tax. The more money you earn, the higher a percentage of your income is taken in taxes. What is the justification for this practice? More particularly, how is it related to government's prime responsibility to protect our rights?
The simplest rationale for taxation is payment for services rendered. The government collects garbage, builds roads, provides security, etc. and deserves to be paid for those services. How much should each person pay? Presumably, in proportion to how much he uses. How, then, does a person earning $100,000 pay, say $50,000 in tax, while someone earning $20,000 may pay $2,000, and someone earning $10,000 may pay nothing at all?! Clearly the first person is not getting twenty-five times as much governmental service as the second (though he will get something more--he probably produces more garbage, uses the roads more, has more property to protect, etc.), and the third is getting a free ride. The first person's tax money is being used in part to subsidize the services of the others. How does this relate to the rights of the people involved?
The first person's property rights are being violated. His money is taken without his consent and awarded to someone else. In terms of rights this cannot be justified. His liberty, pursuit of happiness and security of property are not being respected at all It does not help that the taxes are being decided upon democratically. That only makes them the will of the majority. The fundamental 'inalienable" rights are supposed to protect the individual against the power of government--even democratic governments. If the individual does not agree to subsidize the services of the poor, the law of the majority amounts morally to violation of his property rights.
Of course, the graduated income tax does serve an important purpose: People are afforded certain necessities even though they cannot pay for them. Those who are paying the bill can far better afford it than those who pay less or not at all. Without the graduated income tax, government revenues would be severely restricted. The resulting reduction of government services would lower the quality of life for the majority of the community. All this means that the graduated income tax may be morally correct. But its correctness can only be argued by placing communal quality of life ahead of property rights. Social welfare thus takes precedence over the "inalienable" rights of the individual.
(2) Compulsory education. Imagine a family which has decided that its children shall not learn how to read. ("It is bad for your eye muscles, all that back-and-forth motion," they say. Or perhaps they don't want to "prejudice" their children about reading and will let them make their own decision as adults.) In all democratic societies of which I am aware this choice is not open to parents. You don't have to send your children to school--you can educate them at home if you wish. But a certain minimum curriculum dictated by the state must be followed. Where are this family's rights to non-interference, to the pursuit of happiness as they understand it?
Of course, the rationale of the law is not a mystery: the child's life will be happier, more productive, etc., if he learns to read. He will be a better informed citizen and contribute more to his community. Literacy is the key to great value for him and his society. We may agree that a law making literacy compulsory is well justified morally by contributing to that value. But we must remember that our agreement is based upon putting that value above the family's free decision for its children's education. This is again a sacrifice of rights for the sake of (the child's and society's) welfare.
(3) Consumer protection. In the United States it is illegal to sell unpasteurized milk. You are a farmer with a pail of fresh milk. I decide I would like to try some and offer you fifty cents for a glass. It is a matter of two consenting adults trading their private property. How in the name of rights to non-interference can the state forbid this? It cannot. The real rationale is in terms of health --unpasteurized milk can cause disease. Thus our freedom and property rights are again sacrificed for the sake of social welfare.
(4) Integration. I am the sole owner and operator of a luncheonette in Mobile, Alabama. I like to serve people over six feet tall with blue eyes whose last names begin with "L". The government tells me: "You cannot decide whom you will serve. We will decide, and we are telling you that you must serve anyone who wishes to be served." Now we understand that a social policy of non-discrimination leads to mutual understanding, harmony, cooperation and so on. But it must be recognized that to achieve these goals, the rights of the individual are being sacrificed. The same holds for forced busing of children to integrated schools. This practice may also further those social goals, but clearly the rights of families to determine the education of their children are being violated.
These examples illustrate the priority of social welfare-over rights. They are not atypical. The cancer patient who wants to try laetril, the driver who doesn't want to wear a seat belt, the American who wants to visit Cuba, the home owner who wants to build a two-story Tudor castle in a neighborhood zoned for one-story ranch houses--all suffer restriction or loss of rights (even the right to protect one's life as one sees fit, in the case of laetril) for the sake of some social good. It seems, then, that we have a general principle: Whenever the exercise of a right will adversely affect social welfare, we deny permission. How can this be explained?
Briefly, there are two possibilities. (1) Social welfare is an independent moral principle having greater moral weight than rights. (2) Rights themselves are only justified insofar as they contribute to social welfare, and thus in a case of conflict, rights must be sacrificed. If (1) is correct, then rights are severely demoted in the moral order of things. The statement of the Declaration of Independence that "...to secure these rights, governments are instituted among men..." surely gives the opposite impression. And if (2) is correct the situation is even worse: Morally there is only welfare; rights are only means to that end. It can be argued that John Stuart Mill, the supposed champion of rights and liberty, accepts the second explanation. We can go into this during the question period, if any of you are interested. For the present, we will note two consequences of the pre-eminence of social welfare for the elements of political theory with which we started.
First, the idea of tolerance needs revision. After all, in each of the examples above we are not tolerating the values and decisions of those individuals (not to subsidize the poor, not to teach their children to read, to buy/sell unpasteurized milk, to serve only certain people in his luncheonette). It seems that in practice we are only tolerant of others' differences when either (1) those differences have no practical importance, or (2) we don't think we know the truth. If someone wears a different style of clothing, or believes there are twelve planets in the solar system, we tolerate him because his differences have no practical effect. If someone wants his children to eat only macrobiotic foods, we tolerate him because we have no knowledge that such a diet is detrimental. But if both (1) and (2) fail--if we think that we know the truth about a matter of practical importance--then we enlist the power of the state to force people to conform to our ideas.
Second, certain typical debates need to be re-evaluated. Take pornography, for example. Defenders of the unrestricted distribution of pornography often cast the issue in terms of rights--rights to free speech, trade, the pursuit of happiness, etc. But how will they distinguish these rights from the right to sell unpasteurized milk? In terms of the "inalienable" rights concerned, there is no difference. In both cases, freely consenting adults wish to exchange their private property. To interfere with either exchange is to impose society's values upon individuals who do not accept those values. The real issue is one of social welfare. Unpasteurized milk is dangerous to health, and public health is a universally recognized value. Defenders of pornography don't recognize any public value which they are compromising. (This attitude is changing; certain feminist groups now recognize the detrimental effect of pornography on attitudes towards women.) Thus it is not a debate concerning rights in principle. Rather the debate is over the existence of a social value with which the rights conflicts. All parties to the debate agree that if there is such a conflict, the rights will have to be sacrificed.
Having put rights into a general perspective, let's turn to Jewish sources. Here we find something fascinating: Classical Jewish sources lack the very concept of rights! Indeed, there is no classical Hebrew or Aramaic word for rights. (In modern Hebrew a word meaning ''acquittal," "merit" or "benefit" has to do double duty.) Apparently, the system of Jewish morality has no place for rights. How are we to understand this omission?
First we must examine exactly what difference it makes to omit rights from a moral system. Notice that rights create corresponding obligations. For example, my right to life obligates you not to kill me. This watch is my property. That means that you are obligated not to steal it or destroy it. My right to freedom of movement means that you may not lock me up or impede my progress (unless you are exercising your right to free movement). Now imagine a moral system based on obligation which has all those obligations which corresponds to rights. Is anything lost if we don't have the rights themselves? Perhaps they are equivalent to the corresponding obligations?
I think this suggestion is wrong in at least two respects. (1) The detailed conditions of obligations based upon rights will differ from those of obligations arising from another source. (2) The justifications of the two types of obligations differ widely. Let's take these points in turn.
Consider my watch again. In a rights system, your obligation not to steal or destroy my watch is subject to my waiver. If I waive my right--if I invite you to take my watch or destroy it--your obligation not to do so disappears. The same is true for my right to life. If your obligation not to kill me is based solely on my right to life, then my waiver releases you from your obligation and you are morally permitted to kill me. Now contrast this with a situation in which there are no rights at all, and the obligations come from a different source. Let's say that you have promised George not to take or destroy my watch. In this case my giving you permission to do so is irrelevant: I can't release you from your promise to George. Similarly, if your obligation not to kill me is due to God's commandment forbidding murder, my willingness to die cannot release you from that obligation. Thus the appropriateness of waiver is one distinction between the two types of obligations.
A second distinction concerns redress of failure to honor those obligations. In a rights system, if someone destroys my watch, it is morally appropriate for me to take action. In this case, it is I who am the victim, and therefore it is up to me to seek redress. However, if the obligation is created by a promise to George, then my action is no longer appropriate. Only George can redress the crime of destroying my watch. The reason is that it is George who is the moral victim since it is the promise to him which has been broken.
Waiver and redress are thus two differences in the conditions of the two types of obligations. There may be other differences of detail, but we will turn now to illustrations from Jewish Law. There are three areas in which rights are fundamental for our lives: life, bodily security and property. How will these be affected if Jewish Law does not recognize these rights?
Let's take property first. In Jewish terms there cannot be property rights because, strictly speaking, there is no property. No human being owns anything. ''The earth is the Lord's. . ." What we call "property" is only a matter of supervision or custodianship. Certain things are under our control, but they are not truly ours. Imagine visiting a factory. You see someone unlock the doors, assign the workers to their tasks, signal rest periods, pay the workers, and lock up. Is he the owner of the factory? No--the owner lives in Beverly Hills and visits the factory twice a year! You observed the foreman who runs the factory for the owner.
Similarly, our job is to use whatever objects are in our control in the service of the Owner. This means that we never give our money to charity--we disburse money from the Owner's account to charity. Consider this question: Which is worse, to deny money to the poor, or to give money to a faker who doesn't need it? From this perspective there is a sense in which they are the same. If we give to the faker, there is less money in the charity account for those who are really poor. Either way the poor suffer. Of course, to say that we own nothing does not permit stealing--there are obligations not to interfere with another's custodianship. But our attitude towards "our possessions" is profoundly transformed.
The same holds for our bodies. They too are God's creations. This means that we have no bodily rights. As you may well imagine, this position has many consequences. For example, consider abortion. I don't want to get into all the details of this difficult issue; only one point concerns me. How does the debate usually go? At some point between conception and birth, the fetus becomes a human being. After that point, abortion amounts to killing a human being, and is permissible only under the most severe circumstances. Before that point the fetus is merely a part of the mother's body. As such it is subject to her decision; just as she could decide to cut off her little finger, so she can decide to abort the fetus. (The debate then centers on defining the crucial point in time.)
Now in Jewish thinking there is a false assumption here. True, aborting the fetus is equivalent to cutting off a finger. But are you allowed to cut off your finger? Jewish Law says not. God has decreed a prohibition against self-mutilation.(Of course this law has exceptions, and some of them apply to abortion as well.) Thus abortion at will is unacceptable in Jewish terms since our bodies are not our possessions. Again, having said this, assault and battery are ruled out by obligations not to injure others. But this is worlds away from a concept of bodily rights.
Finally, consider life itself. Even here Judaism denies rights. Certainly vis-à-vis God we have no right to life. The reason is that life is a gift which God dispenses, moment by moment. The fact that God created me and has sustained my life this long does not give me a right to more life. Imagine that every morning at 7:30 a certain person hands you ten dollars. This goes on for years. Then one morning he doesn't appear. When you ask him later, he replies: ''The free ride is finished, I'm not giving you any more." Has he violated your rights? All you can do is thank him for his previous generosity. This holds true even if you used the money he gave precisely as the donor wished. Life is exactly parallel. Even if I have lived exactly as God wanted, that merely justifies the life He already gave. It gives me no claim on life in the future.
Of course the lack of a right to life does not permit murder. God has prohibited that. But it does affect the question of suicide. If murder is ruled out because it violates our right to life, then we can waive that right and end our own lives. If God's law governs life, then suicide depends upon His will. In fact, it is forbidden.
These examples illustrate the profound differences between our ordinary way of thinking and the conceptions of Jewish Law. Ultimately the differences are rooted in a fundamentally different world-view. God as Creator and Sustained of all existence, and communion with Him as the goal of life--these ideas are the ground of the Jewish morality of obligation.
Finally let's consider the issue of justification.
A rights system expresses a particular conception of man profoundly different from the conception of man in an obligations system, especially in the case of the Jewish system of morality.
The function of rights is to protect the individual's freedom of action. Rights thus express the moral value of that freedom. A moral system which made rights paramount would treat freedom of action as man's greatest value. It would see man's essence in his will, and his greatest good in the free exercise of that will. A dictum of Immanuel Kant expresses this idea well: Treat each man as an end in himself, and never as a means. To treat someone else as a means to my ends violates the intrinsic value of his will, as if his will has less value than mine. That can never be true if the free exercise of the will is man's greatest value. Notice that nothing depends upon what the will chooses (except its possible conflict with someone else). The choices to perform lifesaving surgery, write a book, go swimming, or go to sleep are all on a par in this respect. If you want to perform surgery and I want to sleep, you may not force me to help with the operation. That would make me a means to your ends and contradict the value of my will.
These consequences hold only for a system in which rights are paramount. We saw above that our intuitive moral judgments are quite different from this: Rights give way to social welfare. What conception of man this type of system implies depends upon the definition of welfare--what is/are the good/s of society. We also saw that rights play no role in the Jewish moral system. It is based instead upon obligations which have their origin in God's will. What definition of social welfare do these obligations embody?
This is a very large question, but briefly we can say this. Ultimately, the function of the will is to bring us into a certain relationship with God--a relationship of love. The obligations imposed upon us by God's will are means to this end. Through them we strengthen our consciousness of God, and develop God-like character traits, to the point where the profound mutuality and empathy required by love can exist. In this context it is still possible to see the will as man's essence. But merely exercising the will freely, without any consideration of which actions are chosen, is not the paramount value. The will is a power and a potentiality which achieves its value from the way it is used. Only if it is used to bring man closer to God does the will realize its true potential and achieve absolute value.

http://www.heritage.org.il/innernet/archives/rights.htm