Abstract
At a first glance it seems that rights and duties are mutually dependent, or in the language of philosophers – “correlative”: if I have a duty to tell you the truth, you have the parallel right (against me) not to be told lies, and vice versa; if a doctor has a duty to treat people even if they do not have money, the poor have a right to be medically treated, and vice versa. But this correlativity is obviously not universal. For example, I may have a duty to procreate (as is the case in the very first commandment in Genesis 1: 28), although there is no parallel right of non-existent people to be born; or I may have a natural right to property, even if I live on a desert island with no one having a duty to avoid transgressing my holdings, let alone provide me with a piece of land. Furthermore, even if there is some correlation of rights and duties, the direction of dependence of the one upon the other demonstrates that rights and duties are not simply two sides of the same coin. Thus, the duty of the government not to restrict my expression is derived from my right to free speech (rather than the other way round, i.e. it is not the case that the right to freedom of speech is derived from the duty of governments not to intervene in speech); on the other hand, the right of individuals in the Lockean state of nature to punish those who violate the laws of nature derives from the duty of individuals to avoid violating these laws (rather than the other way round, i.e. it is not the case that the duty of individuals to stick to the laws of nature is derived from the right of others to punish them for doing so).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Despite the disagreement regarding the source of this right – whether it lies in our inborn nature, our autonomy, a hypothetical contract or human dignity – all philosophers who recognize the right of free expression would deny that this source is the duty of the government to avoid interfering with people’s expression.
- 2.
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), pp. 171ff. Dworkin applies the distinction to political theories, but it can be equally employed to characterize moral theories, as I will do here.
- 3.
See The Oxford English Dictionary (“datum”) and The Book of Esther (in the Hebrew Scriptures), 3: 8.
- 4.
Most typical is the story of Na’aman, chief commander of the King of Aram’s army, who was afflicted by leprosy. The prophet Elisha instructs him to bathe seven times in the river Jordan and the plagued general is completely cured. The divine nature of Elisha’s therapeutic capacities is highlighted by his refusal to get any remuneration for his medical advice: “As the Lord lives, whom I serve, I will not accept anything” (II Kings, 5: 16). The prophet is just a mediator between God and the patient. He has no medical skills of his own.
- 5.
“In the thirty-ninth year of his reign, Asa suffered from an acute foot ailment; but ill as he was, he still did not turn to the Lord but to physicians”. II Chronicles 16: 12. (The following verse tells us that Asa died 2 years later, but there is no hint whether the timing of death had to do with his appeal to physicians rather than to God).
- 6.
Babylonian Talmud, Tractate Kiddushin, 82a.
- 7.
Tractate Berachot, p. 60a.
- 8.
Tractate Yoma, p. 83a.
- 9.
For a good exposition and analysis of this Maimonidean view, see Noam Zohar, Jewish Bioethics (Albany: State University of New York Press, 1997), pp. 29–31.
- 10.
For these stages in the development of post Talmudic medical ethics, see Julius Preuss, Biblical and Talmudic Medicine (Jerusalem: Magnes Press, 2012), chap. 1. [This is a Hebrew translation of the original 1911 book published in German].
- 11.
Maimonides, Mishneh Torah (trans. Eliyahu Touger), Shabbos, chap. 2, article 1. Maimonides goes out of his way to emphasize the principle of the sanctity of life in declaring that even a hundred Sabbaths should be violated in order to save one life.
- 12.
Pain and suffering have no religious meaning in the Jewish view and hence not only should be relieved even when this involves a violation of another commandment, but also totally avoided in extreme cases by allowing for example a woman whose anguish of further births is particularly great to get contraceptive pills, or for a dying person to get no treatment which would just prolong his suffering. See Immanuel Jakobovits, Jewish Medical Ethics (New York: Bloch Publishers, 1959), chap. 8.
- 13.
Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 181.
- 14.
Lenn Goodman, Judaism, Human Rights and Human Values (Oxford: Oxford University Press, 1998).
- 15.
The term was originally coined in the context of distinctions between two versions of utilitarianism by David Lyons in his Forms and Limits of Utilitarianism (Oxford: Clarendon Press, 1965).
- 16.
It would be interesting to compare this notion of convergence with John Rawls’ idea of “overlapping consensus”, developed in his Theory of Justice (Cambridge, MA: Harvard University Press, 1971). Rawls seems to be a little more ambitious in the characterization of the overlap, which extends beyond the content of the agreed upon practices to some form of common commitment to formal rules of the political game, i.e. fairness.
- 17.
There has been an intense debate whether liberalism itself is just one “parochial” political view among others and that it consequently has no particular standing on the cosmopolitan level and cannot claim universality. This has often been the argument against liberalism put forward by communitarians such as Michael Sandel and Michael Walzer.
- 18.
I wish to thank an anonymous (and meticulous) referee of this article for having suggested to me some important nuances in the reading of the Hebrew Scriptures on both the general conception of rights and on the nature of medical treatment. Equally helpful were comments of two referees of the whole volume.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Heyd, D. (2017). Between Humaneness and Human Rights: A Jewish Perspective on Modern Bioethics. In: Tham, J., Kwan, K., Garcia, A. (eds) Religious Perspectives on Bioethics and Human Rights. Advancing Global Bioethics, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-58431-7_23
Download citation
DOI: https://doi.org/10.1007/978-3-319-58431-7_23
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-58429-4
Online ISBN: 978-3-319-58431-7
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)