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Positive Freedom and the Law





ISBN 9780367137861
Published August 11, 2019 by Routledge
237 Pages

 
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Book Description

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.

Table of Contents

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;

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Author(s)

Biography

Dr. Kim Treiger-Bar-Am is a legal academic in Israel. Her education began at Yale University in philosophy and then law, with masters and doctoral studies in law at the University of Oxford. Her main research and teaching interests extend to free-speech theory and doctrine, and the juncture between speech rights and rights of authors and artists under copyright. Treiger-Bar-Am has published widely and lectured in the United States, Israel, Denmark and England.  

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Reviews

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