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Judaism, Business and Privacy

Published online by Cambridge University Press:  23 January 2015

Elliot N. Dorff
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Abstract:

This article first describes some of the chief contrasts between Judaism and American secularism in their underlying convictions about the business environment and the expectations which all involved in business can have of each other—namely, duties vs. rights, communitarianism vs. individualism, and ties to God and to the environment based on our inherent status as God’s creatures rather than on our pragmatic choice. Conservative Judaism’s methodology for plumbing the Jewish tradition for guidance is described and contrasted to those of Orthodox and Reform Judaism.

One example of how Conservative Judaism can inform us on a current matter is developed at some length—namely, privacy in the workplace. That section discusses (1) the reasons for protecting privacy; (2) protection from intrusion, including employer spying; (3) protection from disclosure of that intended to remain private; (4) individualistic vs. communitarian approaches to grounding the concern for privacy; and (5) contemporary implications for insuring privacy in business.

Type
Perspectives from Judaism:
Information
Business Ethics Quarterly , Volume 7 , Issue 2 , March 1997 , pp. 31 - 44
Copyright
Copyright © Society for Business Ethics 1997

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References

Notes

In the following notes, M. = Mishnah, edited c. 200 C.E.; T. = Tosefta, also edited c. 200 C.E.; J. = Jerusalem (or Palestinian, or Western) Talmud, edited c. 400 C.E.; B. = Babylonian Talmud, edited c. 500 C.E.; M.T. = Maimonides’ Mishneh Torah, completed in 1177 C.E.; and S.A. = Joseph Karo’s Shulhan Arukh (completed in 1565 C.E.), with glosses by Moses Isserles to indicate the practices of northern European (Ashenazic) Jewish communities where they differed from the practices of Mediterranean (Sephardic) Jewish communities, as recorded by Karo.

1 B. Shabbat 31a. The other questions God will ask us, according to the Rabbis, are: “Did you fix times for the study of Torah? Did you fulfill you duty with respect to establishing a family? Did you hope for the salvation [of the Messiah]? Did you search for wisdom? Did you try to deduce one thing from another [in Torah study]?”

2 See, for example, M. Bava Batra 2:8; M.T. Laws of Neighbors 6:12; 10:5; S.A. Hoshen Mishpat 155; Teshuvot Maharshakh (Rabbi Shlomo Cohen, sixteenth-century Turkey), part II, subsection 98. A comprehensive collection of Jewish sources on ecology has appeared in Hebrew as an official document of the Israeli Government: Rabbi Meir Zeichel, Environmental Quality in the Jewish Sources [Eikhut Ha-s ’vivah B’mekorot Ha-Yahadut] (Jerusalem: Office of Environmental Protection, Interior Department, 1990).

3 Deuteronomy 5:3.

4 Deuteronomy 29:13–14; 32:46–47.

5 In the Brother Daniel case, the Israeli Supreme Court was determining the criteria for Jewish identity under Israel’s Law of Return and not under Jewish religious law, but the court’s response was the same as that of Jewish religious law—namely, that Brother Daniel could not claim citizenship as a Jew because that is a privilege which he lost when he converted to Christianity.

6 This concept, lifnim m’shurat ha’din, going beyond the letter of the law, along with other moral duties which complement the duties embedded in Jewish law, are explained and explored in my article, “The Interaction of Jewish Law with Morality,” Judaism 26:4 (Fall, 1977), pp. 455–466.

7 B. Sanhedrin 73a. The imperative to save other people’s lives is derived from the biblical command, “Do not stand idly by the blood of your neighbor” (Leviticus 19:16). This means, for example, that if you see someone drowning, you may not ignore him or her but must do what you can to save that person’s life. In an interesting contrast to American law, most American states do not impose such an obligation. Until recently, in fact, in many American states one could actually be sued if, in the process of trying to help someone, that person suffered injury, but now a number of states have enacted “Good Samaritan laws” to prevent that. In those states, saving a person in trouble (e.g., who is drowning) still remains an option and not a positive obligation, but now the person who does it is at least protected from suit.

See, for example, Samuel Freeman, “Criminal Liability and the Duty to Aid the Distressed,” University of Pennsylvania Law Review 142:5 (May, 1994), pp. 1455–1492; and Mitchell McInnes, “Protecting the Good Samaritan: Defenses for the Rescuer in Anglo-Canadian Criminal Law,” Criminal Law Quarterly 36:3 (May, 1994), pp. 331–371.

Only Vermont and Wisconsin have created a legal requirement to save those in dire straits. In Wisconsin the law requires that “anyone who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or provide assistance to the victim” unless compliance would put the potential rescuer in danger or would interfere with duties the person owes to others or assistance has already been summoned or provided by others (Wisconsin Criminal Statutes 940.34, “Duty to Aid Victim or Report Crime”). In Vermont, the law states that “a person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others” (Vermont Statutes, Title 12, par. 519). Even in those two states, though, failing to save someone’s life is a misdemeanor, punishable by a small fine (in Vermont the fine cannot be more than $100). Typical for American legal theory, this positive obligation, limited as it is, is justified as a protection against an abuse of the rights of the person in distress (since s/he has a right to life), not a moral duty which now has legal consequences. See Lon T. McClintock, “Duty to Aid the Endangered Act: The Impact and Potential of the Vermont Approach,” Vermont Law Review 7:1 (Spring, 1982), pp. 143–183.

On this duty in Jewish law generally, together with some comparisons to Western law, see Anne Cucchiara Besser and Kalman J. Kaplan, “The Good Samaritan: Jewish and American Legal Perspectives,” The Journal of Law and Religion 10:1 (Winter, 1994), pp. 193–219; Ben Zion Eliash, “To Leave or Not to Leave: The Good Samaritan in Jewish Law,” Saint Louis University Law Journal 38:3 (Spring, 1994), pp. 619–628; and Aaron Kirschenbaum, “The Bystander’s Duty to Rescue in Jewish Law,” Journal of Religious Ethics 8 (1980), pp. 204–226. I would like to thank Professors Martin Golding and Arthur Rosett for these references.

8 Sifra, Kedoshim 4:8 (on Leviticus 19:16): “How do you know that if you see someone in danger of drowning or being attacked by robbers or by a wild beast, you are obligated to rescue that person? Because the Torah says, ‘Do not stand idly by when your neighbor’s blood is shed.’” See also Targum Pseudo-Jonathan on that verse and B. Sanhedrin 73a. The Hafez Hayyim (Rabbi Israel Meir Ha-Kohen, Poland, 1838–1933) takes that to mean that when “A” knows that “B” is about to enter into a partnership relationship with “C,” and “A” is certain that the venture will prove harmful, then, under carefully constructed conditions, “A” must warn “B.” Zelig Pliskin, Guard Your Tongue (based on the Hafez Hayyim) (Jerusalem: Aish Ha-Torah, 1975), p. 164. See Alfred S. Cohen, “Privacy: A Jewish Perspective,” The Journal of Halacha and Contemporary Society, vol. 1 (1981), p. 74–78; and Elie Spitz, “Jewish and American Law on the Cutting Edge of Privacy: Computers in the Business Sector,” University Papers (Los Angeles: University of Judaism, 1986), pp. 5–6.

9 Genesis 1:27; 5:1. The meaning of that doctrine in the Torah apparently refers to the fact that human beings are like God in being able to know the difference between right and wrong and to choose between them (see Genesis 3:22). It may also, though, refer to human beings’ ability to speak and name things (Genesis 2:20), like God (Genesis 1:3, 5, etc.), although not with the same creative force; or, as Maimonides claimed, to the human ability to think (see his Guide for the Perplexed, Part I, Chapter 1).

10 The doctrine of the Seven Noahide Laws appears in several different orders and slightly different wording, but the laws are the same in each version: Tosefta, Avodah Zarah 8:4; Babylonian Talmud, Sanhedrin 56a-56b; Genesis Rabbah 16:6, 34:8; Canticles Rabbah 1:16; Pesiqta d’Rav Kahana, “Bahodesh,” pars. 202–3. For more on this doctrine, see David Novak, The Image of the Non-Jew in Judaism (New York: Edwin Mellen, 1983).

11 Probably the most poignant expression of this is in the prayers said morning and evening just before reciting the Shema. The evening version, the shorter one, says this: “With constancy You have loved Your people Israel, teaching us Torah [instruction] and mitzvot [commandments], statutes and laws. Therefore, Lord our God, when we lie down to sleep and when we rise, we shall think of Your laws and speak of them, rejoicing in Your Torah and commandments always. For they are our life and the length of our days; we will meditate on them day and night. Never take away Your love from us. Praised are You, Lord, who loves His people Israel.”

12 Sifra on Leviticus 19:18.

13 The traditional stance of discouraging conversion to Judaism: B. Yevamot 47a: “In our days, when a proselyte comes to be converted, we say to him: ‘What is your objective? Is it not known to you that today the people of Israel are wretched, driven about, exiled, and in constant suffering?’” Despite such warnings, in some periods, proselytes were accepted easily, while in other times and places it was all but impossible to convert to Judaism. See “Proselytes,” Encyclopedia Judaica 13:1182–1193. For more general Jewish reflections on the relationship of Judaism to Christianity, see Rabbi Leon Klenicki, ed., Toward a Theological Encounter: Jewish Understandings of Christianity (New York: Paulist Press, 1991).

14 For a description of at least some of the positions within Jewish sources about exactly who is included in the Jewish duties to “your neighbor”—i.e., to fellow Jews—see Ernst Simon, “The Neighbor (Re’a) Whom We Shall Love,” in Modern Jewish Ethics, Marvin Fox, ed. (Columbus, Ohio: Ohio State University Press, 1975), pp. 29–56, and the response of Harold Fisch, ibid., pp. 57–61.

15 B. Gittin 61a. The codes based on that passage with regard to sustaining non-Jewish poor: M.T. Laws of Gifts to the Poor 7:7; M.T. Laws of Idolatry 10:5; M.T. Laws of Kings 10:12; S.A. Yoreh De’ah 151:12. With regard to visiting non-Jewish sick people: M.T. Laws of Kings 10:12; M.T. Laws of Mourning 14:12; S.A. Yoreh De’ah 335:9. With regard to burying the non-Jewish dead: M.T. Laws of Kings 10:12; M.T. Laws of Mourning 14:12; S.A. Yoreh De’ah 367:1.

16 E.g., Exodus 22:20; 23:9; Leviticus 19:33–34. The count of 36 times in the Torah prohibiting oppression of the stranger: B. Bava Mezia 59b.

17 Piskei ha-Rosh, Bava Mezia, Ch. 5, #72; S.A. Hoshen Mishpat 207:19. On this topic generally, see Menachem Elon, Jewish Law: History, Sources, Principles, Bernard Auerbach and Melvin J. Sykes, trans. (Philadelphia: Jewish Publication Society, 1994), vol. 2, p. 916, note 71, and, generally, pp. 913–920.

18 “Moneylending,” Encyclopedia Judaica 12:255; “Partnership,” 13:153–4; “Usury,” 16:32; and “Economic History,” 16:1282–3.

19 For more on the varying legal methodologies of the movements, and the differing theories of revelation on which they are based, see my Conservative Judaism: Our Ancestors to Our Descendants (New York: United Synagogue of America, 1996), pp. 96–149. For a series of essays on how contemporary Jews propose to draw moral guidance (if not moral governance) from the tradition, see the essays in Part I of Elliot N. Dorff and Louis E. Newman, Contemporary Jewish Ethics and Morality: A Reader (New York: Oxford University Press, 1995).

20 Gavison, Privacy and the Limits of the Law, 89 Yale Law Journal 421, 447 (1980).

21 Fried, Privacy, 77 Yale Law Journal 475 (1983).

22 Bazelon, Probing Privacy, 12 Gonzaga Law Review 587, 589 (1977). See also E. Shils, The Torment of Secrecy, 22–24 (1956); Martin Bulmer, Censuses, Surveys and Privacy (London: Macmillan, 1979); and P. Westin and F. Allan, Privacy and Freedom (New York: Atheneum, 1967).

These sources and those cited in the previous two notes are suggested in Elie Spitz, Jewish and American Law on the Cutting Edge of Privacy: Computers in the Business Sector (Los Angeles: University of Judaism, 1986), p. 1. Moreover, much of the material included in my exposition of the Jewish sources was collected by Rabbi Spitz in that article, and I am indebted to him for his thorough and insightful work. I shall cite some of his own conclusions based on this material anon.

23 Mekhilta, Yitro, on Exodus 20:23 (ed. Horovitz-Rabin [Jerusalem: Bamberger and Wahrman, 1960], p. 245); Sifra, Kedoshim, on Leviticus 19:18 (also in J. Nedarim 9:4 and Genesis Rabbah 24:7); Deuteronomy Rabbah 4:4.

24 Exodus 19:6.

25 Deuteronomy 24:10–13; Leviticus 19:16.

26 Leviticus 19:2; Deuteronomy 11:22; 13:5.

27 Sifre Deuteronomy, Ekev; see also Mekhilta, Beshalah 3; B. Shabbat 133b; B. Sotah 14a.

28 Exodus 3:6; 33:20–23. See also Deuteronomy 29:28, according to which “secret matters belong to the Lord our God, while revealed matters are for us and for our children forever to carry out the words of this Torah.” Similarly, in the visions of the Heavenly Chariot in Isaiah (Chapter 6) and Ezekiel (Chapter 1), both prophets can only see God’s attendants and not God Himself.

29 M. Haggigah 2:1; J. Haggigah 2:1 (8b).

30 Norman Lamm makes this point; see his article, “The Fourth Amendment and Its Equivalent in the Halacha,” Judaism 16:4 (Fall, 1967), pp. 300–312; reprinted as “Privacy in Law and Theology,” in his Faith and Doubt: Studies in Traditional Jewish Thought (New York: KTAV, 1971), pp. 290–309, esp. pp. 302–3.

31 Numbers 24:5; B. Bava Batra 60a; see also 2b, 3a. M.T. Laws of Neighbors 2:14. The legal requirements mentioned were enforced through monetary fines and, if necessary, excommunication; see Nahum Rakover, The Protection of Individual Modesty (Jerusalem: Attorney General’s Office), pp. 7, 8 (Hebrew). See also “Hezek Re’iya,” Encyclopedia Talmudit 8:559–602 (Hebrew); and Lamm, ibid., pp. 294–5.

32 Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York: Jewish Theological Seminary of America, 1924), pp. 31, 171ff, 178, 189. “Herem d’Rabbenu Gershom,” Encyclopedia Talmudit 7:153, footnotes 877–904 (Hebrew), cites Ashkenazic and Sephardic codes and responses which adopted and extended Rabbenu Gershom’s mail decree.

Jewish communities also sought to insure confidentiality in the collection of taxes. Some demanded that the collectors be sequestered while working. The Frankfurt Jewish tax collectors refused to reveal entries in their books even to their superiors, the city treasurers, and the Hamburg community imposed severe fines for breaches of confidence. See Salo W. Baron, The Jewish Community (Philadelphia: Jewish Publication Society, 1942), vol. 2, p. 281.

33 Lamm, ibid., p. 295. The comment of Rabbi Menahem Meiri is in his Bet Ha-behirah to Bava Batra, ed. Sofer, p. 6.

34 M. Sanhedrin 3:7; B. Sanhedrin 31a.

35 B. Yoma 4b. According to Magen Avraham (S.A. Orah Hayyim 156:2), even if the party revealed the matter publicly, the listener is still bound by an implied confidence until expressly released. Likewise Hafetz Hayyim 10:6.

36 Leviticus 5:1. See also B. Bava Kamma 56a; Gordon Tucker, “The Confidentiality Rule: A Philosophical Perspective with Reference to Jewish Law and Ethics,” 13 Fordham University Law Journal 99, 105 (1984); and A. Cohen, Everyman’s Talmud (New York: Schocken, 1949), p. 307.

37 Leviticus 19:16. The Rabbis’ interpretation (in the Sifra on that verse and in Targum Pseudo-Jonathan there) was: “Do not stand idly by when your neighbor’s blood is shed. If your see someone in danger of drowning or being attacked by robbers or by a wild beast, you are obligated to rescue that person.”

38 Zelig Pliskin, Guard Your Tongue (based on the Hafetz Hayyim) (Jerusalem: Aish Ha-Torah, 1975), p. 164; see also Alfred S. Cohen, “Privacy and Jewish Perspective,” The Journal of Halacha and Contemporary Society 1 (1981), pp. 74–78.

39 Elie Spitz, Jewish and American Law (at n. 8), p. 12.

40 Ibid., pp. 12–13.

41 Ibid. p. 13.