N.Y. Times Article: Nussenzweig versus diCorcia

[Ellis Vener]

One of the lines between "art" and "commerce" is that with art, the picture itself is all you're trying to sell. With commerce you're trying to sell something else, whether via an advertisement or a decoration on a useful object such as a t-shirt or a coffee mug.Roger, that is an excellent explanation; smart , short and to the point.

Tim Atherton:...apparently it's his lawyer who doesn't seem terribly well versed in old testament theology

I konow this is off topic but... if Nussenzweig were a Christian of some stripe it would be an "old testament' issue. For Jews it is the Talmudic thing. The so called "Old Testament" is a cobbled together and re-interpreted version of the Talmud to make it look like the the Talmud points to Jesus Christ as the Messiah when in fact it does no such thing.

[paulr]

"One of the lines between "art" and "commerce" is that with art, the picture itself is all you're trying to sell. With commerce you're trying to sell something else, whether via an advertisement or a decoration on a useful object such as a t-shirt or a coffee mug."

exactly ... and the reason someone needs your permission to use your image in a commercial photograph is that it implies your endorsement of what's being sold. it isn't so much about money changing hands.

[paulr]

on topic or not, i think the implications of the second commandment are interesting. as a heathun, i didn't discover it until college, and i thought it was fascinating. all the decent translations of the bible make it as airtight as a legal contract: no image of anything on the earth or in heaven above or in the sea below. in light of this, i was really curious to know how christian churches justified photography, or more significantly, all the religious art that adorns the churches and that was used to teach the traditions. it seemed like it must take some kind of theological doublethink to allow it.

i asked my mom, who had a more rigorous religious upbringing than she ever attempted to pass on to me. she said, "oh, that's not the second commandment." i showed it to her, right in the kink james. she said, "we learned it differently." i asked her what bible she used. she said, "i went to catholic school. we weren't allowed to read the bible."

hmmmm.

[tim atherton]

I realise that Ellis, but I was taught my "Old Testament" studies by a Rabbi... :-)

[Oren Grad]

on topic or not, i think the implications of the second commandment are interesting. as a heathun, i didn't discover it until college, and i thought it was fascinating. all the decent translations of the bible make it as airtight as a legal contract: no image of anything on the earth or in heaven above or in the sea below.

From a Jewish point of view, it's hopeless to try to read even the "original" text of the bible, let alone any translation out of the Hebrew, with the notion of determining from the literal meaning what its application is to every aspect of modern society. Today's interpretation of halakha is based on layer upon layer of scholarly analysis of the Hebrew text. Ellis is right that it's a Talmudic thing, but it's a lot more than a Talmudic thing. There's a long and continuous line of rabbinic scholarship descending from the Talmudic period, that wrestles with the implications of the biblical text and Talmudic interpretation of it for situations and technologies that didn't emerge until long after the Talmudic period - like photography.

Some of this analysis is fairly abstruse, but the general principle of it is not. In an Orthodox context, even very young students of the bible study it not as an isolated text, but together with some of the classical rabbinic commentaries that make it immediately apparent that interpretation is not a simple matter.

The answer re photography is just not obvious from the biblical text. As has been stated here, even among the Orthodox, acceptance of photography of people is the overwhelmingly prevalent view but is not universal. This is based not on a personal reading of the literal text of the second commandment, but on scholarship by rabbinic authorities. The news reports don't have enough detail for us to know whether Mr Nussenzweig actually belongs to a Chassidic sect that follows a rabbinic authority that has ruled against it. But such authorities do exist.

[Oren Grad]

The news reports don't have enough detail for us to know whether Mr Nussenzweig actually belongs to a Chassidic sect that follows a rabbinic authority that has ruled against it

Message to self: read first, then post - as in, see Roger's discussion above re Klausenberg.

[paulr]

Oren, you seem to know a lot about this. I'm curious about your specific thoughts on the 2nd commandment issue. I've looked at 4 or 5 of the more rigorous translations of the bible, and they all seem equally clear on the topic ... no images of anything here, above, or below. It's one of the more clear cut admonitions in the whole book (along with the ones about stoning your neighbor to death for shaving his beard, and selling your daughters into slavery, but those are a separate topic). If there are other sources that trump such simple and literal biblical statements, then I would assume that the bible is relatively low on the list of authoritative scriptures in Judaism. As I take it the old testament is in christianity, although everyone still seems to quote the commandments as law.

[Michael Alpert]

Some of this discussion has looked at Jews and Jewish culture as if it were a single entity, without nuance or internal conflict. (I am referring to the startling confusion of camera-store workers with this one individual who objects to having his photograph taken). This is the same difficulty that many Christian Americans seem to have when they think about Islam. Because it is only with effort that we see the Other fully as an individual, we (I include myself) tend to find broad categories in which to place people who belong to other cultures and/or races. I think that is what is happening here. For me, photography, with its almost maniacal specificity, works in opposition to this tendency.

One additional related thought: The legal issues in this case have been settled. The ethical issue of how to respectfully treat a photographic subject will never be fully resolved, if only because ethics and ethical behavior is a matter of questioning, not of finding answers.

[Oren Grad]

Paulr, that's an excellent question. As implied by what I said before, in Judaism the written Torah (five books of Moses) is a key source of the law, but its literal reading is very far from the full extent or the final word of the law. Any translation of the biblical text proper, no matter how brilliant or subtle, would not capture anywhere near the extent of the law as it is supposed to be followed. And in particular, sometimes the latter actually departs very substantially from what one would expect from a simple, straight reading of the biblical source. The departures may seem quite non-intuitive, too, if you're not already at least somewhat familiar with the process of analysis and reasoning followed in the Talmud and by later rabbinic scholars. So no matter how clear-cut or obvious the literal meaning of Exodus 20 may seem to you, it's not correct to assume that that meaning explains the behavior of an observant Jew today, even if he cites the second commandment as motivation - there's plenty of subtle analysis of what the second commandment actually means before one gets to the particulars of what one may or may not do.

If you're curious, there are a couple of pieces in Wikipedia that can give you a concise orientation as to the nature of Jewish law and the distinction between what's in the written text of the bible and what the law is in practice. I'm not at all an expert on this, but these articles seem reasonable enough. First one is this article on halakha, especially the section on "the sources and process of halakha". Second is this one on the "oral Torah", which should help clarify why the written bible isn't the whole story and can't be used by itself as a definition of the law.

As for my own view, the fact that the literal reading of Exodus 20 seems to say one thing but the behavior of people who claim to adhere to Orthodox observance seems to imply something else doesn't have the same strangeness for me as it seems to have for you. That is surely because during my school days I spent many, many hours studying both the Torah in the classical Hebrew text with its associated rabbinic commentaries and the Talmud. So even though my knowledge of the law and of rabbinical sources was limited to begin with - I had barely scratched the surface by the time I finished high school - and is further grossly decayed these many years later, and even though today I'm not at all observant myself, the mode of analytic reasoning by which the law is derived is central to my own intellectual and cultural background and is really second nature for me. But I hasten to reiterate that your question seems a natural and entirely reasonable one to me, coming from someone who doesn't have this particular background.

I thank Michael for his reiteration of the important point about taking individuals as they are. And although on first acquaintance I think the judge's ruling is probably the right one from a public policy perspective, I also agree that it leaves unanswered many troubling questions about ethical behavior that are beyond the scope of the law.

[Ralph Barker]

I have nothing further of substance to contribute to the discussion. But, I would like to commend the participants in the discussion for keeping the comments at an informative and intellectual level, notwithstanding differing cultural backgrounds. It is easy to jump to contusions (sic) based on the condensation of the facts presented in the press, but it is far more constructive to elevate the discussion above the usual biased plane. So, thanks to everyone for expanding my horizons and my LF-related cultural sensitivity.

I promise that I'll only do culturally-insensitive things with smaller formats. ;-)