No Jewish Watergate: Right to privacy was firmly established centuries ahead of other nations
May 17, 1973
A Column from “A Modern Orthodox Life.”
by Emanuel Rackman
During the seven-week period that intervenes between the festivals of Passover and Weeks, Jews are wont to think of the Law the great gift that God bestowed upon them when He gave them the Torah. Unfortunately, this year that seven-week period finds millions of Americans obsessed with a national tragedy known as Watergate.
It is not my intention to discuss the moral issues involved. That is being done by thousands of others far more conversant with the facts. Rather do I choose to remind Jews that the basic right involved the right to privacy while a comparatively new one in modern law, is a very old and cherished one in the legal literature of Judaism.
Indeed, it is surprising that it is hardly a century since Justice Brandeis in the United States wrote about the emergence of that right in American jurisprudence while Jews already had written about it thousands of years ago. And Jewish legal experts, the men of the Halacha, expanded that right from era to era. This is something to ponder as we thank God on the festival of Weeks for the gift of the Law. Judaism is always in the vanguard for the preservation of human freedom, dignity, individuality and privacy. And let us take pride in our heritage.
According to our sages it was a non-Jewish prophet named Balaam who first observed that Jews in the wilderness pitched their tents in such a way that the entrances or openings did not face each other in order that each family, and especially each coupie, might have privacy. He praised the Jewish people for this and proclaimed, “How goodly are thy tents, oh Jacob, thy tabernacles, oh Israel!” (Numbers 24:5)
It was, therefore, inevitable that when Jews in Talmudic times promulgated building regulations they insisted that no man build a home near his neighbor s home in such a way that the windows face each other. In those days, there were no blinds or shades and windows were simply holes in the walls. Consequently, a neighbor who wanted to build a home had to be sure that the holes in his wall did not face the holes in the wall of his neighbor lest they invade each other’s privacy. The holes in the walls had to be at least six or eight feet above or below one’s neighbors. (Choshen Mishpat (Siman 154))
It appears from extensive discussions in the Talmud and in the codes that this right to privacy was ultimately extended not only to a home but to a court or patio shared by neighbors, who, when they decided to partition the court or patio, were also compelled to contribute to the cost of a partition to insure and safeguard the privacy of everyone in the area. In those days the courts or patios were used for cooking, baking, storage, arts and crafts, and sundry other occupations with regard to which an individual might cherish the right to privacy.
In time, the right was extended even to one’s garden or orchard, in some instances even to a wheat field. It was felt that an individual is entitled to conduct his private affairs without the intrusion or viewing of neighbors.
Related to this development, but not exactly as a part of it, the Bible and the rabbis in the Talmud guaranteed that even a debtor who fails to pay his debts should not have the creditor invade his privacy in order to seize property in payment of that which is owed. The rabbis in the Talmud extended this right so that even the sheriff had to stay outside and wait for the debtor to go into his own home and fetch something which would be security for the debt and deliver it to the sheriff. A man s home was his castle and neither creditor nor sheriff had the right to invade that privacy and go into the home in order to make a search and seizure. (Ibid. 97:6)
Unfortunately, this rule was modified during the middle ages because there were too many debtors who apparently took advantage of it and the law had to protect creditors to a greater extent than had theretofore been necessary.
Yet, by the same token, in the middle ages there was an expansion of the right to privacy so that it included the privacy of communications. Anyone who opened letters which he should not have opened was excommunicated. It was not at all uncommon in the middle ages for letters to bear upon their envelopes a warning to the effect that any unauthorized person who would read the letter would be subject to excommunication under the ban of Rabbi Gershorn. In time, the rabbis found ways to impose money judgments upon anyone who violated the privacy of a communication and in that way obtained information which was prejudicial to the writer of the letter and advantageous to the man who violated the right to privacy. Business secrets and secret processes thus began to enjoy a measure of inviolability.
What about the privacy of oral communications? Truly this is what was involved in Watergate. At the time that the Talmud was written there was no need to afford a man protection with regard to oral communications because it was assumed that anyone who wanted to enjoy privacy in that regard need only whisper his communication and no unauthorized person would have the information. In those days there were no means for the so-called “bugging.”
However, now that whispering is no protection for the privacy of oral communications, it would seem that the right to privacy would be further expanded so as to include not only damage done by “peeping” into another person’ s domain but also damage from taping or recording information which would constitute an invasion of the right to privacy.
That the world was unaware of the extensive legal literature that Jews had with regard to the right of privacy can be attributed to the fact that translators of the Talmud and the codes did not call the right a right to privacy. They literally translated the phrase as it is found in Talmud as “damage from viewing.” It would never occur to a modern lawyer to search an index of the Talmud or the codes for “damage from viewing.”
The modern term is “right to privacy” and unfortunately, as I pointed out almost twenty years ago, the failure to translate both the Talmud and the codes by using modern equivalents of the legal concepts dealt with in the Talmud has continued to make the Talmud a sealed book as far as many people are concerned. However, if one wants information about the right to privacy in Jewish law, one need only look at the Talmudic Encyclopedia presently being published in Israel and one will find literally hundreds of folios on the subject.
This is one of many instances in which Jewish law was centuries in advance of other legal systems. It is also an instance which indicates the extent to which the morality of the Jewish community influenced its legal development. That families wanted privacy, that husbands and wives wanted privacy, contributed immeasurably to the development of the rights of neighbors vis-a-vis each other to enjoy that right in many situations.
On the Festival of Weeks we give thanks for the Law and there is not a day that goes by that those who study the Law and are obsessed with its grandeur do not reap a harvest of joy from the veritable mine of insights that it makes available.