BY: Chesky Kopel.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable 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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”[i]
“…for the only person who is truly free (“ben horin”)
is one who occupies himself with Torah study…”[ii]
Ever since the great changes of the Enlightenment, the concept of personal liberty has been a hallmark of progressive values. Despite its widespread attention, though, the term seems to defy exact definition. The interpretation of its purpose has been long debated, and in its various forms it features prominently in many expressions of political ideology, including the works of John Locke, John Stuart Mill, Isaiah Berlin and, perhaps most famously, the leaders and supporters of the American and French Revolutions. In the United States in particular, the right of personal liberty retains an almost sacred character.
The nation’s revered Declaration of Independence regards Liberty (the glorified, capitalized form of the word often found in historical American documents) as one of the “unalienable Rights” guaranteed every individual. Its maintenance is, therefore, one of the primary responsibilities of governments, as well as a prerequisite for the derivation of their “just powers.”[iii] The preamble to the United States Constitution, the “supreme law of the land,”[iv] asserts that one of the central motivations for the document’s ordination was to “secure the Blessings of Liberty to ourselves and our Posterity.”[v] The Bill of Rights attached to the Constitution protects every American’s right to “life, liberty, and property,”[vi] of which he or she may never be deprived “without due process of law.”[vii] Citizens of the United States pledge allegiance to the nation that is “indivisible, with liberty and justice for all.”[viii] The nation’s most treasured monuments include the Statue of Liberty in New York and the Liberty Bell in Philadelphia. These are among the primary symbols which characterize the “nation, conceived in Liberty.”[ix]
As Jews, we commit ourselves to the laws, ideals, and lifestyle of the Torah, and as citizens and residents of the United States, we have tremendous respect and appreciation for the ideals which this nation espouses. Such circumstances may, therefore, lead us to wonder what relevance, if any, the American right of personal liberty has in the values of the Torah. It appears that although the Torah in general, and many statements of Hazal in particular, utilize terms that seem similar to “liberty” or “freedom,” the two expressions of values are ultimately not identical, and may even be quite different. According to at least one school of thought within Hazal, the Torah’s value of herut demands hefty responsibilities and commitments of those who are said to possess it, and it is most certainly alienable.
From the words of the Declaration presented above it seems that the American concept of individual rights is founded upon the social contract theory of John Locke and some of his contemporary thinkers. Locke, in his magnum opus, Two Treatises of Government, posited that “no one ought to harm another in his life, health, liberty, or possessions.”[x] This assertion is often paraphrased as the natural right to life, liberty, and property, and its protection forms the basis for the powers of government: Societies gather together and appoint a neutral judge who will uphold the basic rights of every individual. When a leader ignores these responsibilities, he or she forfeits the right to exercise power over the people, and the people are thereupon entitled to depose him or her. The text of the Declaration upholds all of these stipulations, referring to a government, formed by “the consent of the governed,”[xi] that is subject to alteration or abolition when it “becomes destructive of these ends.”[xii] The sole difference appears to be that the American version of this theory trades the right of property for that of “the pursuit of Happiness.”[xiii] That said, the U.S. Bill of Rights summarily gives legal force to these rights, albeit without explicit permission to rebel in the event of their violation.[xiv]
It remains necessary now to define “liberty.” It seems that “liberty” colloquially means the right to be free, outside the grip of coercion and officially welcome to pursue whatever one chooses. Legally speaking, however, this definition says very little about which rights are protected and which are not. The task of interpreting and applying the various terms of the law is up to the Congress in its legislative function, and to the Courts of the United States in their function of review on the basis of constitutional law.[xv]
It is commonly understood that the forms of liberty which are protected, and which may therefore not be revoked without due process of law, include anything that fits into the assurances enumerated in the Bill of Rights. These are the freedoms of speech, press, assembly, petition, religion, freedom from unreasonable searches and seizures, involuntary servitude, unlawful detention, forced quartering of troops, double jeopardy, self incrimination, eminent domain, cruel and unusual punishment, the rights to keep and bear arms, to maintain militia, to counsel, to reasonable bail and to a speedy and public trial by impartial jury, to be confronted by all witnesses against him or her, as well as other rights not specifically identified above.[xvi] A particularly broad statement of the scope of the rights came from the 1897 Supreme Court decision in Allgeyer v. Louisiana (which actually just interpreted the right of freedom from unlawful detention): an American citizen is “to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his living by any lawful calling; and to pursue any livelihood or vocation.”[xvii] Basically, just about everything.
However, as the concept of “due process” indicates, there are situations in which the government may restrict personal liberty. More specifically, the Court’s rulings indicate that all of the rights discussed above are predicated upon a concept commonly known as the “harm principle.” This principle was a central doctrine in the philosophy of John Locke, John Stuart Mill and many other political thinkers, and was explained by Mill as follows: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[xviii] In other words, a person is only free to act in ways that will not hinder the freedom of other people, or otherwise harm them, such as by challenging their safety and security. As Supreme Court Justice Oliver Wendell Holmes, Jr. famously said, “The right to swing my fist ends where the other man’s nose begins.”[xix]
It therefore seems that the societal understanding of liberty and its legal definition in the law of the United States of America are quite similar. Everyone is and must be free to act in absolutely any way that does not harm or restrict anyone else.
Each year on the eve of the seder, we engage in a dignified commemoration of the birth of the Jewish people, meant to affirm its existential purpose. Jews around the world defiantly declare: “Avadim hayinu le-Par’oh be-Mitsrayim, va-yotsi’enu Hashem E-loheinu mi-sham…” “We were slaves unto Pharaoh in Egypt, and Hashem, our God, took us out of there…”[xx] Throughout the Haggadah, a crucial emphasis is placed upon this very theme: We were once slaves in Egypt, and then God released us, displaying His boundless kindness through His powerful miracles, and now we are free. As the Haggadah nears its end, it reaches the following conclusion:
“Therefore, it is our duty to thank, praise, laud, glorify, aggrandize, extol, bless, exalt, and acclaim the One who performed all of these miracles for our ancestors and for us. He has brought us from slavery to freedom, from anguish to joy, from mourning to festivity, from darkness to great light, and from servitude to redemption. Let us say before Him a new song, Praise Hashem!”[xxi]
The phrase “from slavery to freedom” (me-avdut le-herut), which also forms a central theme in the prayers and praises of Birkat ha-Hodesh (The Blessing of the New Month), has a very memorable quality that speaks directly to our nation’s socio-political sensibilities. In reality, however, the exact definition of this term “herut” is quite unclear in any one instance. In Tanakh, the root appears just once, in the book of Kohelet:
“Alas for you, O land whose king is a lackey (na’ar) and whose ministers dine in the morning! Happy are you, O land whose king is a master (ben horim) and whose ministers dine at the proper time – with restraint, not with guzzling.”[xxii]
Here, the term “ben horim,” which means “those who possess herut,” is contrasted with the derogatory description of “na’ar,” and seems to describe a responsible, mature person, as opposed to a “guzzling,” reckless youth. Hazal, however, both in the instances referenced above, as well as in many other statements throughout Talmud, use herut as an antonym for avdut, slavery. For example, both one who is not an eved Kena’ani (Canaanite slave)[xxiii] as well as land which is not encumbered by a lien (the Hebrew term for which is “shi’bud,” from the same root as “avdut”)[xxiv] are described as “benei horin,”[xxv] which also translates to “those who possess herut.” This emphasis in the distinctive terminology of Hazal might be intended to teach an important lesson regarding the way that the saintly sages viewed the state of slavery: The restrictions of avdut are those that undermine a person’s dignity and self-control; freedom from such detention not only ensures basic human rights but also restores the stature of man.
The emphasis on freedom’s capacity to affect human character implies that it demands some commitment on the part of the free man himself. One who is “free in the enjoyment of all his faculties”[xxvi] is not necessarily dignified. The stature of herut is only achieved by one who properly utilizes his faculties and his rights to accomplish goals that are beyond the capabilities of one who is enslaved. He is said to embody his freedom only if he actively demonstrates the presence of its blessings. In the Jewish system of beliefs, we are bound to a manual of explicit directives whose study and involvement retain inherent sacred value. By occupying oneself with Torah study a Jew achieves true herut, but without such occupation, as R. Yehoshua ben Levi famously declares in Pirkei Avot, he fails to actualize his potential for freedom in this world.[xxvii]
Given this background, it appears that the freedom that we celebrate each year on Pesah is not congruent with the political liberty guaranteed us as citizens of the United States. Rather, according to the Torah, we end up as slaves nonetheless to the Supreme Master of men, and this enslavement was actually the objective of our national redemption. As the Redeemer Himself declared, “For it is to Me that the Israelites are servants (avadim): they are My servants, whom I freed from the land of Egypt, I the Lord your God.”[xxviii] The Haggadah adds, “At first our ancestors were idolaters, but now ha-Makom has brought us close to His worship (la-avodato).”[xxix] The very same term, “avadim,” which we use in the Haggadah to describe our plight in Egypt, is applied to us in the context of our ideal redemption. We were freed from the avdut of Pharaoh only to commit ourselves faithfully to the avdut of Hashem, which is encapsulated in the guidelines of the Torah which we were to receive shortly thereafter. This goal forms the apex of our celebration of freedom from Egypt in particular, and of our experience as religious Jews in general. This is what we have in mind every seder as we lean like kings, drinking the four cups of wine meant partly to fulfill an obligation of expressing herut.[xxx] It is also for this reason that God assured Moses, as He entrusted him with the mission of leading the nation out of Egypt, that after the redemption would be completed, we would “worship (ta’avdun) God at this mountain.”[xxxi] The freed tribes of Israel did indeed later merit standing before that mountain, Mount Sinai, to receive the Torah and to enter into the glorious “covenant of destiny”[xxxii] with God Himself. At this point, God revealed Himself to the entire nation as the One “who brought you out of the land of Egypt, the house of bondage (beit avadim).”[xxxiii] It appears that the freedom from earthly avdut is expressed solely through voluntary dedication to a higher avdut.
I would therefore like to conclude that the protected “liberty” of the United States may be similar to the potential to attain herut, but certainly not to herut itself. Herut is an ideal of commitment, and a man who has no liberty to choose has no means of commitment.
Since we, as Jews, initially committed ourselves to the Torah and its obligations, (and Gentiles committed themselves to just the Seven Noahide Laws), our liberties are no longer all guaranteed and protected; instead, many are sacrificed for the sake of herut. Jews are obligated to forfeit liberty and property for the observance of many of the 613 commandments (365 of which are explicit restrictions on our rights to engage in particular activities), and even to forfeit life for the sake of the sanctification of God’s name, when the most central commandments are threatened. Gone from our world are the rights of speech, freedom from involuntary servitude, and, most clearly, freedom of religion.
For the sake of precision, it is important to note that just because one major term in the Torah is not equivalent to liberty as we know it, there may be others that are, at least in some sense of the word. One of the most famous distinctions drawn between different forms of liberty is that which renowned philosopher and historian Sir Isaiah Berlin outlined in his essay, “Two Concepts of Liberty.”[xxxiv] There, he demonstrated that “liberty” can refer to one of two main constructs: “negative liberty” describes an existence free from coercion, whereas “positive liberty” represents a person’s capability to fulfill his or her will and potential.[xxxv] This distinction is quite significant, because while Berlin’s positive liberty may very well be a value and a sought-after goal in American culture, there is certainly no protection accorded to it in the Constitution.
In his commentary on R. Yehoshua ben Levi’s statement referenced above from Pirkei Avot 6:2, Chief Rabbi Lord Jonathan Sacks draws what appears to be a similar distinction:
“Hebrew distinguishes between two kinds of freedom, hofesh and herut. Hofesh is negative liberty, the absence of coercion, while herut is positive liberty, the freedom that honors the freedom of others. Positive freedom requires habits of self-restraint; hence it belongs only to those who have internalized the teachings of Torah.”[xxxvi]
R. Sacks here seems to borrow the renowned terminology of Sir Berlin, but, perhaps quite intentionally, does not provide the exact understanding of the distinction. His “positive liberty” honors the ideals of communal and social responsibility, and not those of self-actualization. Hazal saw our commitment to the Torah and its values as a sort of crystallization of the freedoms with which we are blessed, into the more perfect state of an interpersonally-driven positive liberty. R. Sacks’ understanding of herut and its need for “self-restraint” closely parallel the view of the term as an achievement of dignity as presented above.
I would like to modestly raise two small objections to his words though. Firstly, I understand that the commitment being addressed constitutes more than just “honoring the freedom of others,” even though this lofty goal is absolutely a central value in the total scope of the Torah’s demands. In what sense do the obligations regarding the purification of a metsora (individual affected by leprosy)[xxxvii] or the destruction of an ir ha-niddahat (apostate city)[xxxviii] honor the freedom of others? Additionally, the Bible translations of Onkelos, Yonatan, and Metsudat Tsiyyon consistently interpret the term “hofshi” as “bar horin,” seemingly equating the two words between which R. Sacks distinguished.[xxxix] Nonetheless, the force of his words remains the same, for we as Jews are not granted unlimited freedom but are rather bound to an imperative of herut. The existence of negative liberty as a value in Judaism and even as a focal point of the celebration of Pesah does not change the scope of commitment demanded from every Jew and, on a certain level, from every individual.
It should also be noted that multiple opinions may have existed among Hazal regarding how exactly to define herut, and it may have also been used to refer to different meanings in different contexts. One notable example that points to at least one of these conclusions is the following statement in Pirkei Avot: “[R. Tarfon] used to say: It is not for you to complete the task, but neither are you free (ben horin) to stand aside from it.”[xl] Here the term seems to indicate complete freedom from responsibility, more similar to the Chief Rabbi’s understanding of hofesh and the above presentation of liberty.[xli] This essay therefore relates only to the approach to herut presented by R. Yehoshua ben Levi in the later Mishnah in Avot and not to the view of R. Tarfon.[xlii]
It seems that both liberty and herut are so integral to their respective value systems and so vast in the possible scope of their meanings that any attempt to fully describe either will ultimately fall short. The extent of the rights protected by liberty remains under constant debate in American politics and society, especially since September 11, 2001, when many Americans began to support the sacrifice of certain elements of liberty for the sake of security. Similarly, herut is just too important and crucial in the world of Hazal for it to settle into any one description. The last two thousand years have seen Jews from many generations who present extremely different minds and perspectives to their appreciation of the values of the Torah, and herut is no exception to this process. Still, the view presented above raises a powerful, existential contrast between these two differing conceptions of personal liberty. According to R. Yehoshua ben Levi, herut is and demands something higher than basic liberty. It is indeed alienable, but the threat of alienation stems mainly from within the ben horin himself.
“Ha-Shatta avdei; le-shanah ha-ba’ah benei horin.”
“Now we are slaves; next year we will be freemen.”[xliii]
Chesky Kopel is a freshman at YC and is a Staff Writer for Kol Hamevaser.
[i] Thomas Jefferson (primarily), “The Unanimous Declaration of the Thirteen United States of America” (Philadelphia, 1776). Available at: http://www.ushistory.org.
[ii] Avot 6:2, translated by Chief Rabbi Lord Jonathan Sacks in The Koren Siddur (Jerusalem: Koren Publishers, 2009), pp. 676-677.
[iii] Jefferson, ibid.
[v] Ibid., Preamble.
[vi] Ibid., Amendments V and XIV. The former instance applies only to federal law, and the latter extends the clause to state law. The “Bill of Rights” consists of the first ten amendments to the Constitution.
[vii] Ibid., Amendment V.
[viii] Francis Bellamy, “The Pledge of Allegiance.” Originally published in The Youth’s Companion (Boston, MA: Perry Mason & Co., 1892), then altered by the U.S. Congress in 1923 and in 1954. Available at: http://oldtimeislands.org/pledge/pledge.htm.
[ix] Abraham Lincoln, “The Gettysburg Address,” delivered in Gettysburg, Pennsylvania, on November 19, 1863. Available at: http://showcase.netins.net/web/creative/lincoln.html.
[xi] Jefferson, ibid.
[xiii] Founding Fathers Benjamin Franklin and Thomas Jefferson decided to downplay the protection of personal property in American law. See Benjamin Franklin, Completed Autobiography, ed. Harry Johnson (Washington D.C.: Regnery Publishing, 2006), p. 413. [Citation provided by Wikipedia entry: “Life, liberty, and the pursuit of happiness.”]
[xiv] The Bill’s closest parallel to this concept is Amendment II, which guarantees the following: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
[xv] See “Constitution,” Articles I and III.
[xvi] See ibid., Amendments I through IX.
[xvii] U.S. Supreme Court Associate Justice Rufus Peckham, Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 . See “Liberty,” West’s Encyclopedia of American Law, 2nd ed. (Farmington Hills, MI: The Gale Group, Inc., 2008).
[xviii] John Stuart Mill, On Liberty (Oxford: Oxford University Press, 1998 [originally published 1859]), pp. 21-22.
[xx] Haggadah shel Pesah, translated by Yisrael Isser Zvi Herczeg in the Abarbanel Haggadah (Brooklyn: Mesorah Publications, Ltd., 1990), Maggid Section, pp. 32-33.
[xxi] Ibid, pp. 100-101. See also Ma’ariv prayer, the blessing entitled, “Ve-Emunah”: “…and [God] brought out His people Israel from [Egypt’s] midst into everlasting freedom (herut olam)…” Translated by Chief Rabbi Sacks for The Koren Siddur (above, n. 2).
[xxii] Kohelet 10:16-17; translation from the JPS 1999 Tanakh.
[xxiii] For instance, see Mishnah, Pesahim 8:1; Mishnah, Gittin 4:4; Mekhilta de-Rabbi Shimon Bar Yohai 28:28.
[xxiv] For instance, see Mishnah, Ketubbot 12:2; Mishnah, Gittin 5:2; Talmud Bavli, Bava Batra 176a.
[xxv] One important exception to this trend is the statement of R. Akiva in Mishnah, Bava Kamma 8:6: “Even the poor in Israel have to be considered as if they are freemen (benei horin) reduced in circumstances, for in fact they all are the descendants of Abraham, Isaac, and Jacob” [translated by Rabbi Dr. E. W. Kirzner for the Soncino Hebrew-English Edition of the Babylonian Talmud (London: The Soncino Press, 1990)]. In this case, the term is contrasted with “poor” and therefore seems to maintain its biblical definition, meaning “dignity” or “royalty.”
[xxvi] Justice Rufus Peckham, ibid.
[xxvii] See n. 2. The Mishnah there derives this concept from exegesis of a phrase used in Exodus 32:16, “harut al ha-luhot” – “incised upon the tablets” (JPS translation). The word “harut” here is meant to represent the similar-sounding word “herut.” Hazal thus conclude that the ultimate herut is attained within the Tablets of Torah law themselves and is expressed through personal dedication to the Torah. For more analysis of this mishnaic imagery, and a different approach to the significance of herut in Hazal’s values in general, see R. Moshe Taragin, “Zeman Cherutenu: Reflections of a Metzuveh Ve-oseh,” The Israel Koschitzky Virtual Beit Midrash of Yeshivat Har Etzion, 1997. Available at: http://www.vbm-torah.org.
[xxviii] Va-Yikra 25:55.
[xxix] Haggadah shel Pesah, pp. 50-51.
[xxx] See Pesahim 108b.
[xxxi] Shemot 3:12.
[xxxii] See R. Joseph B. Soleveitchik, “Kol Dodi Dofek,” in idem, Ish ha-Emunah (Jerusalem: Mossad Harav Kook, 2006), pp. 92-94.
[xxxiii] Shemot 20:2; Devarim 5:6. The connection between the departure from slavery in Egypt and the reception of the Torah at Mount Sinai is a central theme in countless works of Jewish thought, from many different generations. For example, see R. Soloveitchik, pp. 86-99; R. Samson Raphael Hirsch, Horev, translated from the German by R. Yitzhak Friedman (Nanuet, NY: Feldheim Publishers, 2007); Zohar 83:1, s.v. “Lekh.”
[xxxiv] The essay was delivered on October 31, 1958 as Berlin’s inaugural lecture as Chichele Professor of Social and Political Theory at the University of Oxford. Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969).
[xxxv] See ibid.
[xxxvi] Chief Rabbi Sacks in The Koren Siddur, pp. 676, 679.
[xxxvii] See Va-Yikra 13-14; Mishnah, Nega’im 14; Talmud Bavli, Yoma 41b. The ailment which afflicts the metsora is not necessarily the same as leprosy, but this issue is beyond the scope of this essay.
[xxxviii] See, for instance, Devarim 13:13-18; Mishnah, Sanhedrin 10:4-6; Talmud Bavli, Sanhedrin 111b.
[xxxix] See, for instance, the commentaries of Onkelos and Yonatan to Shemot 21 and Devarim 15; Metsudat Tsiyyon to Shemu’el 1:17 and Iyyov 3:19. Onkelos and Yonatan are traditionally attributed to people who lived in the time of the Tanna’im.
[xl] Avot 2:16 (2:21 in some editions); translation by Chief Rabbi Sacks for The Koren Siddur.
[xli] See the commentaries of Bartenura and Rabbeinu Yonah on this statement.
[xlii] It should be noted that R. Tarfon was a Tanna and R. Yehoshua ben Levi an Amora (although statements of his appear in our compilation of the Mishnah, both here and in Uktsin 3:12), and it is therefore possible that the generational gap between the two sages was relevant to their difference in opinion about the concept.
[xliii] Haggadah shel Pesah, pp. 26-27.