[Avodah] Rights in halakhah

[Micha Berger]

On Tue, Feb 09, 2010 at 11:19:08PM -0500, T613K at aol.com wrote:
: In the coming parsha, Mishpatim (Shmos 21:10), I believe a wife is  granted 
: a right to s'eir, kesus and onah -- food, clothing and  consort.  (Or is it 
: possible that the husband has obligations but the  wife does not have 
: rights? Surely that wouldn't make sense. It must be that his
: obligations = her rights.)

In effect yes. But I spoke about the law being based on rights, and this
law is not. It's based on his roles in the covenantal community we call
marriage, which since they are to a specific recipient, in this case
imply that she has rights.

I was talking about the legal philosophy, not the pragmatic outcome.

My belief is that duty-to-another based law can too easily decay into
totalitarianism
and that rights-based law too readily decays into a culture of
entitlement. (Because a culture of getting guaranteed rights naturally
leads to wanting more and more things guaranteed.)

However, halakhah is based on a third philosophy -- joining together in
a whole. Duty to a relationship, of which I am a part, in contrast to
duty to the other. The whole concept of beris.

Still, while that's the overall legal philosophy (I argue) there are
exceptional cases where specific laws are phrased as rights. She'eir
kesus and onah don't qualify, as they are phrased as duties. Legally,
being phrased as a right would have no nafqa mina (that I can think
of). In terms of culture, though, chazal wouldn't have framed in that
way because we don't in general relate to rights.

"Kol hamaavir al midosav" is inconsistent with a rights-based philosophy
of law.

Tir'u baTov!
-Micha

-- 
Micha Berger             When faced with a decision ask yourself,
micha at aishdas.org        "How would I decide if it were Ne'ilah now,
http://www.aishdas.org   at the closing moments of Yom Kippur?"
Fax: (270) 514-1507                            - Rav Yisrael Salanter