Positive Freedom and the Law
This book explains why we should stop thinking of freedom as limited to a right to be left alone. It explores how Kantian philosophy and Jewish thought instead give rise to a concept of positive freedom. At heart, freedom is inextricably linked to the obligation to respect the autonomy and dignity of others. Freedom thus requires relationships with others and provides an important source of meaning in liberal democratic societies. While individualism is said to foster detachment, positive freedom fosters relations.
Moving from moral theory to law, duties are seen as intrinsic to rights. The book considers test cases involving the law of expression, regarding authorial rights and women's prayer at Jerusalem's holy site of the Western Wall. Affirmative duties of respect are essential. Rights held by copyright owners require that all authors – including so-called users – are shown respect. Moreover, rights held by the authorities at the Western Wall require that all worshippers – including those whose interpretation of Jewish law differs from that adopted by the authorities – are respected.
Preface; Part One: Freedom and Obligation; 1. Kantian Theory and Jewish Thought: The Encounter between Them; 2. Autonomy as Obligation: Kant and Traditions of Positive Freedom; 3. Obligation as Freedom: Jewish Thought; 4. Dignity, Respect and Expression; Part Two: Positive Freedom in Expression; 5. Authors' Rights and Duties; 6. Women's Prayer in Jerusalem; Concluding Remarks;
In her intriguing inquiry, Kim Treiger-Bar-Am brings to light the commonalities between two prominent Western traditions: Kantian ethics and the Jewish heritage. Under her reading, both traditions share the conviction that obligation and freedom are interrelated and interdependent. Her original insights contribute greatly to intellectual history as well as to moral and legal theory as such.
- Alon Harel, Hebrew University of Jerusalem.
In this intriguing work Kim Treiger-Bar-Am develops a theory of expressive rights and duties based on a reading of Kantian theory alongside the tradition of Jewish thought. In the second part of the book the necessary relation of right and duty, and of obligation and freedom, in the exercise of expressive freedom that arises from this reading is investigated in the context of a copyright model that would require respect for all authors and their expressive acts. This beautifully written and convincingly argued book contributes an invaluable and innovative strand to the important body of work by copyright theorists that understands copyright as a speech right impacting on our politics, culture and communal life.
- Fiona Macmillan, Birkbeck, University of London, University of Roma Tre, and University of Technology Sydney.
In this fascinating exploration of the Jewish tradition and Kantian philosophy, Treiger Bar-On shines a light on the close connection between freedom and obligation in both structures of thought. The book includes a sophisticated meditation on freedom of thought, interpretation, and expression that comes alive through application to contemporary legal dilemmas.
- Suzanne Last Stone, Yeshiva University, Cardozo Law School.
Positive Freedom and the Law challenges familiar ways of mapping moral terrain. It integrates traditional Jewish values with Kantian moral categories in ways relevant to contemporary liberalism. Treiger-Bar-Am argues that liberty essentially involves positive freedom, and she connects Kantian respect with a morality of care, highlighting affinities with Biblically-anchored Jewish commitments to justice and the common good. She brings this perspective to bear on disputed contemporary issues concerning rights of authorial expression, and the movement for women’s prayer at the Western Wall holy site in Jerusalem. The account is an illuminating conceptual and normative template for critical issues of the modern liberal state.
- Jonathan Jacobs, Professor and Chair of Philosophy, John Jay College/CUNY.