[Avodah] Rights in halakhah

[Zev Sero]

Rabbi Arie Folger wrote:
> On Thu, Feb 11, 2010 at 3:54 PM, Zev Sero <zev at sero.name> wrote:
>> The right to life has
>> *never* been construed by its advocates as a right to be given the means
>> to sustain life, whether in the form of food, shelter, clothing, or
>> medical care;
> 
> You should read some of the more recent constitutional amendments in a
> number of European countries.

That's precisely because those constitutions are *not* based on the
natural law school, and their framers do *not* advocate a "right to life".


Rabbi Arie Folger wrote:
> RZS and RMB have been arguing about whether there is a difference
> between a rights based and a duty based philosophy of law. Particular
> attention was paid to the question whether there is a difference
> between a right to life and a duty not to kill. Well, one difference
> is whether one considers it  society's obligation (absent insurance
> contracts) to provide for every conceivable means, including
> experimental procedures and medication that may or may not be helpful,
> in order to preserve life. In a duty based system, your duties are
> defined, in a rights based system, you can keep on demanding "but I
> have a right to live."

No, you can't.  Because the right to life is by definition a *negative*
right, just as are its two classical companions, the rights to liberty
and to property. (Jefferson's version replaced "property" with the more
wordy and roundabout "the pursuit of happiness", to avoid being seen as
endorsing slavery; but it meant the same thing.)  The right to life has
*never* been construed by its advocates as a right to be given the means
to sustain life, whether in the form of food, shelter, clothing, or
medical care; any more than the right to property can be construed as
a right to be given someone else's stuff!  The minute you concede the
existence of positive rights, then the scenario you describe is the
first station on the road to Hell.

> Finally, another difference is
> that rights can be given up, whereas with duties, that is harder.

No it isn't.  Because duties are *to* someone, and that person can
always waive them.

> Hence, in a rights based system, euthanasia would sooner be accepted
> than in a duty based system.

Only if the duty not to kill is seen as owed not to the potential victim
but to God (or the King, or the victim's family).

> The interesting thing is that while the difference re: euthanasia is
> acknowledged, with Judaism and its offshoots being strongly opposed to
> active euthanasia, despite the subjects acquiescence, while the rights
> based secular systems are increasingly in favor, yet, regarding the
> obligation to heal, the situation is reversed

This is because Judaism sees everybody as Hashem's property; a slave
cannot waive his right not to be killed, because the right doesn't
belong to him but to his Owner.  On the other hand if the Owner consents
to killing His slave, the slave's consent is not needed.

> I think that a crucial reason for this
> difference is the gemara in IIRC Sanhedrin, which explains the duty to
> heal as coming from the obligation to return lost objects.

But this obligation can be waived by the beneficiary, and is also
subject to considerations of economic efficiency.  Since the loser must
reimburse the finder for all expenses he incurred in returning his
property, if the anticipated costs will exceed the property's value
then he is presumed to consent to its non-return.  The same is true of
medical care; one need not spend more on a person's care than he would
be willing to spend out of his own pocket.  But the duty not to kill
him is absolute, because only his Owner can waive it.

-- 
Zev Sero                      The trouble with socialism is that you
zev at sero.name                 eventually run out of other people’s money
                                                     - Margaret Thatcher