1. Two recent accounts delivered at Kings College Centre for Philosophical Studies, October 15, 1990, by Professor Richard Sorabji and Professor Myles Burnyeat. Interestingly, both began with different orientations and proceeded with completely diverse analyses, and yet both arrived at this same conclusion.

2. Washington Post, February 13, 1989, at Bio.

3. Perhaps it should be noted at this point that the Soviet Jewish Cultural Centre that opened in February, 1989, with such international fanfare, was quietly and unobtrusively closed several months later. The closing of the centre received no mention in U.S. news at the time or subsequently.

4. To note just several of the most famous examples of contributors and contributions, the works of Mendelson, Albert Einstein, Baruch Spinoza, etc. Not only did Jews rapidly become outstanding in every field of endeavor, but their varied contributions changed the very landscape of the cultures to which they were admitted.

5. It is interesting to note here that the last of the major political revolutions the world experienced prior to the rest of the conditions giving rise to World War Ii, grew out of the ideas of a philosopher of German/British Jewish lineage, i.e. Karl Marx. Marx himself was an atheist. Nevertheless, his ideas, in original form, bear some distinctively Jewish characteristics, e.g. his ideas concerning the Utopia to come, the withering away of the state, etc. It is said by most serious students of genuine Marxism that Marx himself would not recognize modern communism as connected in any way with Marxism.

Still, if one agrees with Susan Sontag that “Communism is fascism with a human face,” it is striking that the other major ideological enemy of the Jewish project, apart from Naziism, grew out of ideas which were themselves conceived by someone of Jewish descent, and then perverted beyond recognition. The propagators of these ideas still claim that they are the genuine and legitimate descendants of Marx's ideas.

Further, Marx's grave in London was visited on the centenary of his death by hundreds of thousands of the “faithful;” they came from all over the world. The deification of Marx, not to mention the “sanctification” of Communist ideas masquerading as marxism, which continues runs completely contrary both to the letter and spirit of both Jewish Law and of genuine Marxism. Karl Marx himself may well be the ultimate victim of Marxism.

6. For example, see Hobbes, T., Leviathan ch. 31 (1651)Google Scholar. “The right of nature whereby G-d reigns over men and punishes those that break his laws is to be derived, not from his creating them as if he required obedience as of gratitude for his benefits-but from his irresistible power. I have formerly shown how the sovereign right arises from pact; to show how the same right may arise from nature requires no more but to show in what case it is never taken away.”

Rousseau, J., Du Contrat Social (1762)Google Scholar. “[B]ut the force and liberty of each man being the primary instruments of his own self-preservation … [t]o find a form of association which defends and protects the person and property of each member with the whole force of the community ….” “I have said nothing of King Adam or of the Emperor Noah … [t]here can be no doubt that Adam was sovereign of the world … so long as he was its sole inhabitant ….”

Locke, J., Two Treatises Of Government (1690)Google Scholar. “The great and chief end … of Mens uniting into Commonwealths and putting themselves under Government, is the Preservation of their Property.” 1 J. Locke, supra, at 39. “Yet in respect of G-d the Maker of Heaven and Earth who is the sole Lord and Proprietor of the whole World, man's propriety in the creatures is nothing but that Liberty to use them which G-d has permitted.” 2 J. Locke, supra, at 124.

Pain, T., Rights of Man (1792)Google Scholar. “What is [the] history of all monarchial governments, but a disgustful picture of human wretchedness and the accidental respite of a few years' repose? Wearied with war and tired with human butchery, they sat down to rest and called it peace. This certainly is not the condition that heaven intended for man; and if this be monarchy, well might monarchy be reckoned among the sins of the Jews.”

7. The Declaration of Independence para. 1 (U.S. 1776).

8. See, for example, Hobbes discussion of rights in Leviathan, Part I, ch. 14. He speaks of when a man has “either abandoned or granted away” his right. This is noticeably the language normally used to describe one's relationship to one's property.

Concerning these philosophers' general influence, see, e.g., a letter from Jefferson to Thomas Paine, (June 19, 1792). “But our people, my good friend, are firm and unanimous in their principles of republicanism and there is no better proof of it than they love what you write and read it with delight. The printers season every newspaper with extracts from your last, as they did before from your first part of the Rights of Man.”

9. The term “metaphysical” is used throughout, and often where the term “religious” would seem the more natural. However, the former term seems preferable for the purposes here because it is only this aspect of the term “religious” to which this paper addresses itself. Therefore, “metaphysical” offers hope of a cleaner reading and understanding.

10. Filmer, R., Patriarcha: A Defense of the Natural Power of Kings Against the Unnatural Liberty of the People (1680)Google Scholar, written sometime between 1635 and 1642 and distributed amongst his friends at that time; first printed in 1680.

11. Id. Filmer's description of society, political and familial, is taken exclusively from his interpretation of Biblical history, and also (minimally) European history interpreted within this Biblical framework.

12. Although Filmer's work was published in 1680, nevertheless, it had enjoyed wide circulation previously amongst his friends. Leviathan was published in 1651.

13. As Herbert Schneider points out in his editorial introduction, “The treatment of covenant theology in Part Iii of Leviathan is thoroughly Puritan, and in general Part II should be regarded as a secularized version of the English Puritans' theory of a commonwealth.” Schneider, H., Leviathan: Parts I and II, x., (1958)Google Scholar.

14. Locke, J., The First Treatise of Civil Government, The Second Treatise of Civil Government (1690)Google Scholar.

15. “Locke and Filmer use the same quotation from James I on this issue [the issue of absolute monarchy]. Filmer uses it to show that the king, though above the law, ought to rule by the law. Locke uses it to show that the king must make ‘the Laws the Bounds of his Power, and the Good of the Publick, the ends of his Government,’ else he is ‘acting as a tyrant without right.’” Grant, R., John Locke's Liberalism 80 (1987)CrossRefGoogle Scholar.

16. E.g., the United Kingdom: Bill of Rights, 1688. This set the stage for the slightly later French Assembly's “Declaration of the Rights of Man,” 1789, and the United States Constitution, 1787. With respect to the situation in France, however, it must be remembered that while the Declaration was adopted in 1789, French Jews were not granted any rights until 1791 after bitter debate of the “issue.”

17. This is not to suggest that the earlier philosophers mentioned developed theories which were devoid of utilitarian considerations.

18. J. Bentham, Anarchical Fallacies, first appeared in French as part of the second volume of Tactique. Bentham's point is a welcome and accurate (even though scathing) commentary concerning the “autonomous rights rule of man.” However, both utilitarianism, and its modern progeny of positivist thinking, are completely theoretically bankrupt of substantive and procedural recipes for legal change or political improvement.

Jeremy Bentham now sits preserved for posterity in a glass case at the University of London, “that G-dless institution on Gower Street,” as critics at the time of founding referred to it. Bentham was one of the University's founders, and this was his wish for posthumous self-preservation—one of the conclusions of his utilitarian deliberations and calculations. Bentham's point itself, therefore, taken in its own full context suggests an appropriate response. It seems that utilitarianism itself and much of its positivist progeny are themselves “nonsense upon stilts.”

19. Although John Austin's theory is a command theory, clearly taken from Hobbes, his is just a command theory, i.e. with no reference to natural law.

20. It should be noted here that most likely these thinkers would not consider themselves natural law theorists; nor, probably, would they appreciate being referred to as such. But the fact that their theories differ in significant ways from those of the original natural law theories does not affect the claim that they also are similar enough in certain important ways for their origins to be accurately traced to the latter.

21. While England, for example, still is very much both officially and unofficially a “Christian country,” there is not influential political or legal theory current to justify this or a similar state of affairs. And in fact, one of the aspects of Middle-Eastern conflicts which seems to make them so incomprehensible to modern Western thinking is the appeal, sometimes on both sides, to metaphysical justifications for certain political proposals put forward. The reference to the metaphysical dimension as a justificatory one, when it is understood by the West at all, is such that this is one of the aspects which makes Middle Eastern political and legal justifications seem, to Western eyes, “backward,” “uncivilized,” “provincial or quaint,” and probably ultimately theoretically unjustifiable.

This situation is regrettable in that it results in much confusion and misunderstanding. When former Prime Minister Shamir said in 1989 of the intifada, “They are as grasshoppers in our eyes,” he was alluding to a story from Numbers in the Old Testament. Meaning, at least in part, that Israelis would no longer see themselves as too small to conquer their enemies, the allusion was completely lost on the Western press.

He was reported to have said that Arabs are insects, etc. Interpreted strictly within a liberal rights framework (as it was) this would, indeed have been an abhorrent thing to say. However, that was not what he said—or meant. Even if the press had understood the allusion with metaphysical origins, however, it is doubtful that Prime Minister Shamir would have received any more favorable coverage. References to metaphysical justifications, if they ever were allowed to Israelis, have recently been completely discredited by the exclusively Human Rights analysis given by the press to the Middle Eastern situation.

22. It must be remembered that Israel also has, besides what many Israelis take to be metaphysical claims concerning this land, legitimate claims in the arena of International law. That is, Israel acquired this land in a defensive war; and there is absolutely no legal precedent for demanding that land so acquired must subsequently be unconditionally surrendered. Much of the recent criticism concerning Israel blurs the two types of claims as well as liberal reactions to them. In other words, the fact that some Israelis believe they have metaphysical claims is held to be suspect by liberalism seems to overshadow or undercut what would be a “normal” liberal reaction to Israel's legal claim to the land.

23. Twenty two years after the fact, the Central Intelligence Agency in 1989 published a map of Israel which replaces its 1978 issue. The new map, for the first time, uses the names Judea and Samaria. The preceding 1978 map had, as its only recognition of the outcome of the Six Day War, and Israel's resultant sovereignty over the area, the notation “Israeli-Occupied. Status to be determined.” [I am grateful to Bernard Hamilton for pointing me towards this information, as well as towards several other supporting sources contained herein].

This 1989 development seems to have foreshadowed the recent U.S. agreement to the latest U.N resolutions concerning Israel which refers to these same lands (and also East Jerusalem) simply as “Palestine.”

It should also be noted that there is another possible explanation (although a highly unlikely one) than the one being offered here to explain this usage of terminology. It is conceivable that this media coverage (as well as official U.S. usage) is indicative of the “fact” that “occupied territories” is not equivalent in international law to “conquered territories.”

24. While Marxism is “religiously” unmetaphysical, much of modern Marxism's character as presented by some of its theoretical dogmas such as that of dialectical materialism, is simultaneously “religiously” materialistic. It is this second aspect of its theoretical character, yet not the first, which is shared by modern liberal theory.

25. See Wisconsin v. Yoder, 406 U.S. 205 (1972)Google Scholar.

26. This last point seems to be no less true when the existing systems are themselves to some extent still based on metaphysical justifications, as is sometimes held to be the case for the state of Israel.

27. This basic tension is the result of the normative theoretical bankruptcy, noted above, of utilitarianism and its progeny.

28. Silberg, , Law and Morals in Jewish Jurisprudence, 75 Harv. L. Rev. 306, 313 (1961)CrossRefGoogle Scholar.

29. See Nozick, R., Anarchy, State, and Utopia (1974)Google Scholar. Professor Nozick discusses, among other claims, states coming into being as “dominant protective associations.”

30. See Aquinas' discussions in On Free Choice (Goodwin, R.P. trans. 1965)Google Scholar, in particular Articles VI, VII, and IX. While Locke himself explicitly rejects Aquinas on this point, Aquinas' general influence on these thinkers is nonetheless obvious, both in his notions of free choice and rationality and in the importance he places on these.

31. See Kant, I., Critique of Practical Reason 144–51 (Beck, L.W. trans., 1949)Google Scholar.

32. There is a debate which continues within the fields of Philosophy of Education, Philosophy of Mind and other fields which concern themselves with the concept of “autonomy.” It centers around whether or not “autonomy” necessarily has any moral content and what that content might be. The point stated above is at least an expression of the conceptual tension which is at the centre of the debate, if not the actual cause of it.

33. Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917)(Holmes, J., dissenting).

34. For an illuminating discussion of the similarities between these two ideas, and of their place in American law, see Feinberg, , Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 Notre Dame L. Rev. 445 (1983)Google Scholar.

35. This situation is at least part of what must underlie Justice Silberg's concern that “the ‘legislative crisis’ of the generation … [t]he task facing the legislator—any legislator—is to bring the law closer to the mind (so that the people should understand it), and to bring it closer to the heart (so that the people would want to obey it). If one of the two is lacking, a surrender to the law is perhaps possible, but not its observance.” Silberg, supra note 28, at 330-31.

36. This, combined with the theoretical bankruptcy of utilitarianism mentioned before, perpetuates the existential dilemma.

37. Hart, , Are There Any Natural Rights?, 64 Phil. Rev. 2, 178 (1955)CrossRefGoogle Scholar.

38. None of this is to suggest that we would be better off if the state suddenly began legislating in the field of morality. It is rather only to point out the erroneousness of what is often (mistakenly) taken to be a legitimate implication of positivist thinking, namely that the law and morality are two separate and unrelated domains.

39. This aspect of the difference between the two systems is taken account of, and elaborated upon at length, in Silberg's article, supra note 28.

40. For an interesting discussion of the logical and linguistic connections between “rights” and “duties” see Hart, supra note 37, at 179. Further in the same discussion, Professor Hart by way of example considers the Decalogue according to a (misconceived) theory which would have it assigning rights to individuals as opposed to requiring certain behavior which is owed to G-d. While Professor Hart is surely right concerning this latter point, the point can not be unquestioningly expanded to include the entire body of Jewish Law.

41. See, e.g., Bokser, , Democratic Aspirations in Talmudic Judaism, in Judaism and Human Rights 149 (1972)Google Scholar: “Talmud does not regard the individual man as a self-sufficient personality. He is completed through matrimony,” i.e. through entering a social unit.

42. See Dorff, E. & Rosett, A., A Living Tree 49–54 (1988)Google Scholar. For original support, see for example the Ten Commandments, Exodus (chs. 21-23), etc. which contain laws for the relationships between people and people, as well as between people and G-d.

43. Further support for these propositions can be found by a consideration of the many obligations people have to treat animals in various ways arising immediately out of Jewish Law. Beyond that, since animals can be legitimately owned, besides being used for sacrifices, etc., within this framework, this alone rules them out of the class of possible right holders, regardless of the specific content of the rights themselves. It is further interesting to note, that it is quite possible to maintain a coherent theory of rights outside of the strictly Jewish legal framework which holds the point being asserted here. See my, “The Right to Privacy and Education,” Unpublished Doctoral Dissertation, University of London Institute of Education.

44. See E. Dorff & A. Rosett, supra note 42, at 126. Again, for primary support, see Gen. 2:15, “And G-d put them in a garden to work it and care for it.”

45. For instance, see section 101 of the National Environmental Policy Act of 1969, where it is declared that the federal government is to serve as a trustee of the environment of present and future generations of Americans. In Jewish Law (e.g. Exodus 23:10-11) one finds, for example, that every seven years the land was to be left alone for a year, unworked, untitled, unplucked, etc.

46. For example, see Roth, , The Justification for Controversy Under Jewish Law, 76 Calif. L. Rev. 337, 340–43 (1988)CrossRefGoogle Scholar.

47. Cohn, H., Human Rights in Jewish Law 68 (1984)Google Scholar.

48. For a more complete discussion of this point see Silberg, supra note 28. Moreover, there is a principle which runs throughout the Talmud that a specific legal prescription (a “Thou shalt not…”) can and should be turned on its head if adhering to it stands in the way of basic human ethics, personal dignity, peace, etc. In other words, it seems that the spirit of Jewish Law must take precedence over the letter.

49. Silberg, supra note 28, at 308-09.

50. Better a trespass with pure intent than a precept without intent (Kavannah)-Talmud.

51. See generally Cover, , Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. Religion (1987)Google Scholar for an elaboration on this theme.

The Talmud Avot 2:2 declares “How good is the Torah with the ways of the world.”

52. Lamm, , The Right of Privacy, in Judaism and Human Rights 225 (1972)Google Scholar.

53. “Every person should declare ‘because of me was the universe created'.” Talmud, , Sanhedrin, 37aGoogle Scholar.

54. For example, see Melden's, A.I. discussion in Rights and Persons (1977)Google Scholar. “To be able in these ways to demand our rights, to assert ourselves as the moral agents we are, is to be able to demand that we be dealt with as members of the community of human beings. This is what moral dignity involves, not some esoteric goodness that is intrinsic to human beings and that has its root in some transcendent realm of which they are members.” Id. at 25. While Melden's theory disallows the possibility of animals' rights, this presents a concrete example of the theoretical point at which (at least) the possibility of animal rights comes into modern rights theory.

55. For example, see Roe v. Wade, 410 U.S. 113 (1972). Justice Blackmun's opinion states that it is “clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in this guarantee of personal privacy.” Id. at 152.

56. For a discussion of the “woman's right to an abortion” in Jewish law, see Feldman, D., Marital Relations Birth Control and Abortion in Jewish Law 268 (1974)Google Scholar.

57. Id. at 262, “the therapeutic abortion required by the Mishnah ….” Interestingly, the fetus itself does not have legal personality in Jewish Law, giving it a status other than what we would call a “person.”

58. It should be mentioned at this point that, as Leonard Swindler has pointed out, the large majority of discussions of women in the original texts, especially the “Wisdom Literature,” discuss women strictly in relation to men, i.e. husbands, fathers, sons. The view that emerges from his discussion is that in ancient times Jewish women were largely treated as the property of the men to whom they were related. Swindler, L., Women in Judaism: The Status of Women in Formative Judaism 29–55 (1976)Google Scholar. His point, however, is probably best considered alongside the idea that everyone was already placed within a social context.

Moreover, his claim does not affect the general proposition that a woman would only “own” her body by G-d's leave. Women's status has obviously indeed been less than that of men from very early times in Judaism's history until very recently. Nevertheless, married women did have a separate legal personality.

59. One's autonomy and free will, when properly developed and used within the Jewish legal framework, allows one to become an independent being who is more “like” G-d, i.e. one whose character and behavior is more and more in the “image of G-d.”

60. Professor Hart agrees with this proposition in part when he asserts that “Rights are typically conceived of as possessed or owned by or belonging to individuals ….” Hart, supra note 37, at 182.

61. Discussing Locke's theory Ruth Grant, for example, says “The right that each man has is a right to govern himself by the light of reason to secure his preservation. It is a right that is inalienable … because to have that right defines a man's humanity ….” R. Grant, supra note 15, at 71.

62. While this last can be seen in earlier liberal theory, for example of John Locke, the content of the law itself is here quite different—with all of the further implications that both views imply. In Locke's theory the first law of nature, which he assumes to be identical with G-d's law, is that of self-preservation; and the rest of his theory proceeds from these assumptions—i.e. the end of civil society is the preservation of the individual. Therefore, while in Locke's theory people can not destroy themselves, that is pretty much the extent of the constraints of the “bounds of law” he considers relevant. While people may disagree with the actual content as well as the value of it in Jewish Law, it is undisputable that Jewish Law's value content is much richer than the value content of liberalism—even in a theory, such as Locke's that is most directly proceeding from what it takes to be G-d's law.

63. In Hebrew (both classical and modern), there is, for instance, no equivalent of the English verb of possession “to have.” To express “I have, you have, s/he has” etc., in Hebrew, one says instead “there is to me, there is to you, there is to her/him” etc.

64. For a discussion of the point or telos of Jewish Law generally see Bokser, supra note 41, at 147.

65. For an interesting consideration of the telos or purpose of rights generally see Benn, , Human Rights—for Whom and for What?, in Human Rights 59 (1978)Google Scholar.

66. For example, see Rabbi Dr. Isidore Epstein's discussion in The Jewish Way of Life 28–29 (1946)Google Scholar.

67. See, for instance, The Talmud of the Land of Israel in Baba Batra 2, (Neusner, J. trans. 1982)Google Scholar, having to do with a right to privacy.

68. To mention one of hundreds of possible illustrative examples, remember that it was immediately following Israel's success in the 1967 war, a war which Israel did not start but which it quite surprisingly won, that the Soviet Union severed all diplomatic ties with Israel. More than twenty years later, the possibility of somewhat renewing some of these ties is only now beginning to be explored.

69. This point often gives rise to the criticism from the nay-sayer camp that International “Law” is really not law at all. Nevertheless, there is the larger community of nations' power of pressure, approval and sanction, which operates coercively. The same can be said of Jewish Law.

70. While International Law makes no reference to the metaphysical dimension as a basis for these rights, unlike Jewish Law, nevertheless, people in this arena have their rights by virtue of being members of the class of human beings; nothing more.

71. This is with the exception of International Treaty Law.

72. For example, see The International Covenant on Economic, Social, and Cultural Rights, 1966; United Nations Convention Relating to the Status of Stateless Persons, 1954.

73. Bokser, supra note 41, at 148. His source for this claim is Yevamot 89b.

74. Peter Laslett seems to agree with at least part of this point in his introduction to his edited version of Filmer's, Patriarcha and Other Political Works (1949)Google Scholar. Laslett notes that “Filmer's patriarchal mystique of kingship could almost be said to have provided for the Stuart monarchs the sort of political mythology which the doctrine of the ‘Volk’ provided for the Nazi dictatorship of Germany.” Id. at 30.

75. This is no less true if the view, closer to original natural law theory, is taking that these rights were not given to Jews or anyone else—but rather their rights were finally recognized. If people's rights rest finally on the recognition of them by states or anyone else, it is little comfort that their rights are theoretically grounded in this way when those rights cease to be recognized—as they can just as easily be.

76. Interestingly, Rene Cassin, a French Jew and Jurist, who had, among other notable achievements, served on the U.N. war Crimes Commission from 1943-1945, was the principal author of United Nations Declaration of Human Rights. For a more thorough discussion of the substantive similarities between Jewish Law and International Human Rights Law see Henkin, , Judaism and Human Rights, Breakthrough 34 (Winter/Spring 1989)Google Scholar.

77. Consider, for example, the recent annual State Department report, Country Reports on Human Rights Practices for 1988. The extremely disproportionate amount of coverage given to Israeli policies and practices speaks for itself. Nor has the resultant criticism of this been taken into account by the State Department; the following year's report repeated exactly the same disproportionalities.

78. That this must have been so can be seen by a consideration of the continuing general criticism of many countries not just to the United Nations itself (and its philosophical underpinnings), but also to the Nuremburg trials and what the critics claim is the highly questionable “justice” of the victorious nations.

79. This latter comes as a criticism from both sides of the international ideological program. Only the specific substance of the criticism varies, depending it seems on the interests at stake. On the one hand, the liberal states, the United States among them, tolerate Israel's “mistakes.” It is such a young democracy, it has not quite learned the rules yet, etc. As soon as it grows up, and irons out the wrinkles in this system, then it surely will deliver.

On the other hand, Israel is seen as the favorite child of the East by the Eastern states and their ideological supporters. These states, not only have animosity towards the West's general program, but also open hostility towards the Jewish program. Since, at the same time, they are economically dependent on the West and her program, it seems to be all just a little more than they can bear. By these latter, as well as the non-aligned camp, Israel is, as usual, expected to continue only as the rightful victim of this ideological tug of war.

80. It is enlightening to remember at this point several observations of Laslett: “Patriarcha is usually classified as a development of the theory that kings rule by the appointment of G-d and that resistance to them is forbidden by Divine Law. As is well known, the theory had been worked out as a justification for the resistance of the Emperor to the claims of the Pope during the Middle Ages, and had developed during the sixteenth century as a defense of the Catholic king against Protestant insurgents, or of the Protestant king against Catholic insurgents.” P. Laslett ed., supra note 74, at 30.

81. This is certainly not to imply that Israel, or any other nation for that matter, should be exempt from scrutiny and criticism concerning its human rights policies. Rather, it is to set the claims in their full context. It is further to point out how the persistent claim combined with its frequency, tone, colorations and implications resulting from that complete context, amount to much more than scrutiny and rational criticism.

82. The current situation is uncomfortably reminiscent in several ways of former eras in which the church enjoyed world legal dominion. This is especially true when one considers the present involvement of the Catholic Church in the human rights movement alongside the church's performance, or rather lack of it, during World War II.