Rights and Duties in Jewish Law

Authors

Itamar Rosensweig
Shua Mermelstein

Abstract

In this Article, we argue that rights play a central role in Jewish law. In Section I, we reconstruct Robert Cover’s thesis distinguishing the West’s jurisprudence of rights from Judaism’s jurisprudence of obligation. In Section II, we present Rabbi Lichtenstein’s theory that rights play no central role in Jewish law. We show that the theories of Rabbi Lichtenstein and Robert Cover have given rise to the idea that there are no rights in Jewish law, only obligations. In Section III we develop two types of arguments in support of our position that rights are central to Jewish law. Our first argument appeals to Hohfeld’s analysis that rights are correlative of duties. Our second argument contends that certain mitzvot are best understood as protecting individuals’ rights. In Section IV we discuss two ideas that underlie the “no rights in Jewish law camp.” The first idea is that the category of mitzvah is best interpreted as obligation. The second idea is that an obligation to obey God’s law implies a law comprised of obligations. We argue that both of these ideas are misguided.

Recommended Citation

Rosensweig, Itamar and Mermelstein, Shua (2022) "Rights and Duties in Jewish Law," Touro Law Review: Vol. 37: No. 4, Article 17.
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol37/iss4/17