December 16th, 2010
by Aryeh Amihay
The tannaitic preoccupation with distinctions of reshut ha-rabbim and reshut ha-yahidpresents a straightforward example of the rabbinic enterprise of expansion of Jewish law that innovates and transcends the limits of its legal origins. The distinction between the public and the private spheres is evidently not consequential for the biblical legislator, despite the indubitable existence of such distinctions at the time.
This is perhaps another result of the meeting of cultures and the influence of Roman law on rabbinic thought and categories. Thus, for example, Salo Baron asserts in his classic A Social and Religious History of the Jews that “[…] the rabbis succeeded in circumventing the extremes of unrestrained private control. By developing, in particular, the doc-trines of hefqer (derelict property) and reshut ha-rabbim (public property), both going far beyond the Roman categories of res-nullius and res omnium communes, they established the definite supremacy of public interest” (2:252). Indeed, Baron’s statement can be applied to Roman law and biblical law equally, as we recognize the debt the rabbis owe these corpora, but also the extent of liberty they allowed themselves in expanding, interpreting and deviating from their received traditions and restraining norms.
An interesting example of this distinction appears in m. Taharot 6.1, where the reversibility of the categories is discussed:
A place which was an individual’s authority (reshut ha-yahid) and became a public authority (reshut ha-yahid) [and then] returned and became an individual’s authority: when it is an individual’s authority it is doubtfully impure; when it is the public’s authority it is doubtfully pure.
The notion of a sphere changing its status back and forth is intriguing. It is easier to imagine a single shift: for example, an empty field that was regarded public, until someone claims it as its own; or a private property that has become subject of “right of way.” But once this status has been changed, it is hard to imagine it reverting to its previous status, at least in a timeframe so short to allow memory of its original status. In his seminal study on The Production of Space, Henri Lefebvre claims that “[the] nexus of problems relating to space and its production extends beyond the field of classical architecture, beyond monuments and public buildings, to take in the ‘private’ sphere, the sphere of ‘residence’ and ‘housing’. Indeed the relationship between private and public is now fundamental: today the global picture includes both these aspects, along with their relationship, and partial analyses, whether formal, functional or structural, must take this into account” (159).
When Lefebvre published this study in 1974, the “global picture” was starkly different from the one we know today. Now, of course, technological advances have radically changed communication of personal and business relations across the world. It is precisely these technologies that further complicate and change the nature of private and public spaces in a sense that might make the rabbinic notion of a reshut ha-yahid that turns into reshut ha-rabbim and back again useful and applicable to situations the rabbis could not envision. As Elliot Dorff has written in an essay on Judaism and privacy: “[I]n our day, we cannot apply Jewish texts mechanically from their time period to ours. We must instead take into account the ways in which contemporary business is done and then seek to apply the principles which emerge from Jewish law to contemporary business conditions” (35).
Performatively, many people use and experience their Internet ventures as an intensely personal experience. We write personal e-mails, we conduct our independent research, and we construct our Internet surroundings based on our tastes. Just as our library or music collection can reveal to visitors our tastes and intellectual background, so can a glimpse of my “Favorites” toolbar disclose preferences and Internet habits. When someone is sitting in the privacy of his home, surfing the Internet, it is easy to forget that that person is, in many senses, on the street. Should we consider a search-phrase entered on Google to be a private action, as someone going through an archive, with no observer being able to know what exactly is being sought? Or is this scenario more similar to someone shouting a name on the street, with anyone who happens to pass by (and in this case, Google itself) able to hear and collect that information?
Some of these issues are beginning to be formalized and standardized in legislative and judicial decisions. Law can help decide which of our Internet behaviors are public, which are private, and how to guard this privacy. As these distinctions grow and the barriers between two kinds of Internet usages become stronger, they will also generate a need to inform users that they are crossing a boundary from a private usage to a publicly-monitored usage.
One significant step we should take as responsible Internet-users regards not our own privacy, but the privacy of others. We can independently choose what we watch, what we look for, and what we don’t click and “check out.” By respecting the privacy of others on the Internet, we can forge a space that is private for our own use, open to be publicized when necessary, but in an advised manner.
Aryeh Amihay is a PhD candidate at Princeton University working on a dissertation entitled Law and Society in the Dead Sea Scrolls.
Baron, Salo W. A Social and Religious History of the Jews. New York : Columbia University Press, 1952.
Dorff, Elliot N. “Judaism, Business and Privacy.” Business Ethics Quarterly 7.2 (1997): 31-44.
Lefebvre, Henri. The Production of Space. Trans. Donald Nicholson Smith. Oxford: Blackwell, 1991.