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K'vod HaBriyot - Human Dignity

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Mar 18, 2005

K’vod HaBriyot – Human Dignity The Talmud (Berakhot 19b; Shabbat 81b and 94b; Megillah 3b; and Eiruvin 41b).teaches,“Great is human dignity [k’vod habriyot], “so much so that it overpowers a prohibition of the Torah.” After some discussion, three categories that bow to dignity emerge directly from the text of the Talmudic passage: rabbinic law, passive biblical law, and monetary law. R. Naftali Amsterdam, in a letter to R. Yitzchak Blazer (also known as R. Itzeleh Peterburger), writes that to qualify for the classification of k’vod habriyot the matter must be one of objective degradation for at least the majority of individuals. In this respect, the dignity referred to is that of mankind, rather than of any individual. Along these lines, R. Shimon Gabel ( Sofrei Shimon, Berakhot 20a.) explains that it is for this reason that one is not asked to dispense with one’s dignity for the sake of the mitzvah; no single person can make that decision. R. Blazer, responding to R. Amsterdam in one of a lengthy series of responsa on the topic, writes to prove the existence of a subjective standard.(Responsa Pri Yitzchak 1:53, 54). Nonetheless, R. Eliyahu Bakshi Doron, argues that an observable, albeit individual, humiliation must be present; one’s internal, emotional biases may be halakhically relevant, but under other categories. (Responsa Binyan Av 2:56) II. Controversial Categories Beyond the Talmud text itself, three additional categories, disputed among the commentaries, may be found. A specific word in another verse teaches that the injunction against a nazir or kohen gadol involving himself with a dead body, even for the funeral of relatives, is suspended in the instance of an individual who passes away with no family to attend to his proper burial (met mitzvah). The concern for the dignity of the deceased takes precedence over the prohibition of a nazir or kohen gadol coming into contact with a dead body. This is at least the understanding of Tosafot, (Berakhot 19b, s.v. Omrat) who explain that although an active prohibition is involved, protecting the purity of a kohen gadol is less severe than most transgressions, for it is a prohibition relevant only to a portion of the population (lav sh’eino shaveh lakol), a categorization bearing some leniency. It is thus more susceptible to being overcome by concerns of dignity. Likewise, the status of a nazir is subject to abrogation by a rabbinical scholar (efshar b’sheailah). Rashi, however, is of a different view; a met mitzvah is not included within the category of the prohibition in the first place, and thus no explanation is necessary for the dispensation. Thus, according to Tosafot, biblical prohibitions that are somehow weakened, such as those that do not apply to the entire populace or those that can be removed by rabbinic decision, create yet another category suspended for concerns of human dignity, while Rashi apparently does not recognize this category. A second disputed category is the topic of a dispute among rishonim. Bowing to the active nature of the offense, the Talmud rules that someone who discovers a forbidden mixture in his clothing (shatnez) must remove the garment immediately, even in a public place, despite the ensuing embarrassment. The Rosh limits the range of this law, in the process adding yet another category to the growing list of those areas of halakhah that step aside in respect to human dignity. According to the text in his possession, one is only required to disrobe in public if the mixture is found b’bigdo, in his garment, as opposed to a situation in which he realizes that his companion is inadvertently wearing shatnez. Only if he discovers it himself, and is thus knowingly so attired, is he required to sacrifice considerations of k’vod habriyot; however, if the wearer himself is unaware and is thus transgressing without his own knowledge (b’shogeg), k’vod habriyot still prevails. Thus, it emerges that even an active biblical law can be violated for the sake of human dignity, as long as the transgression is unintentional. However, it is clear from the Rambam (Hilkhot Kilayim 10:29) that he does not agree to this innovation. His text contains no distinction as to the wearer and the discoverer; any shatnez discovered must immediately be removed, regardless of the intent or lack thereof. Thus, a dispute exists between the Rosh and the Rambam as to the status of an inadvertent transgression, the Rosh allowing it to continue if concerns for dignity requite it, with the Rambam dissenting. The Sha’agat Aryeh (58) challenges the Rosh’s position, noting a counterindicative passage in the Talmud (Menachot 38a.). In response, many authorities (See Bach; Responsa Goren David, Yoreh Deah 32; and Responsa Maharash Engel VIII:210) suggest a revamped understanding of the Rosh’s position. The focus is not in reality on the inadvertent transgressor and the severity, reduced or otherwise, of his action; rather, it is on the discoverer of the shatnez, and on the question of his obligation to inform the former of the situation. While an obligation exists to prevent another Jew from sinning, if the latter is acting unintentionally, this obligation, according to the Rosh, is only rabbinical. As such, it is overlooked if k’vod habriyot mandates it. Either understanding of the Rosh, if his position is accepted, impacts significantly upon the halakhah, allowing one to refrain from informing an unsuspecting other of his transgression, if the alternative is humiliation. One discussion to address this issue is that of the Responsa Noda B’Yehudah, (Mahadurah Kamma, Orach Chaim 35). The case was of a young man who had had an affair with his mother-in-law, and now wishes to repent. He had queried as to whether he was required to inform his father-in-law, for the latter is obligated to divorce his unfaithful wife. As they were a distinguished family, this course of action would cause significant embarrassment. If the Rosh is indeed correct, perhaps the father-in-law might be allowed to remain ignorant and continue living with his wife, avoiding humiliation. R. Landau, after considering this issue, concludes stringently, but suggests a plan in which the embarrassment can be circumvented. However, R Chaim Halberstam (Resp. Divrei Chaim, 35) and R. Shmuel Engel (Resp. VIII, 210) are lenient, for other reasons. The Rama (Y.D. 372:1) adopts the position of the Rosh in discussing a kohen who is asleep in bed, undressed, when someone passes away in the same building, rendering the dwelling unfit for habitation by a kohen. Although the kohen must leave immediately, the Rama allows the news-bringer to ask him to dress first, and only when he is properly covered to inform him that he must leave the building. A third controversial category can be developed from a dispute found in the writings of later decisors, one that will hinge explicitly on understanding the process by which human dignity exerts its halakhic priority. III. Explaining the Priority of Dignity: the Mechilah Theory It thus bears determining, then, the mechanism by which the maintenance of personal self-respect overpowers religious obligations. One of the previously listed categories, that of monetary matters, may provide a crucial clue. R. Moshe Sofer (Chiddushim to Shabbat) explains that the relevant concept here is that of mechilah, of “forgiving” that to which one is entitled. Certainly, an individual has a number of personal rights granted to him by the Torah; among these is having his lost property returned to him. Nonetheless, it is presumed that no Jew would stand on his rights if it meant degradation to another. Thus, it can be assumed that an implicit mechilah is in effect in such instances, allowing the concern for human dignity full attention. With this foundation, R. Sofer continues, an extrapolation may be made to the supercession of rabbinical precepts as well. Although the honor due to the Talmudic authorities mandates obedience to their dictates, they forgive the obligations of their own honor in favor of that of the individual, much as does the possessor of monetary rights. The Tzanzer Rebbe, R. Halberstam, in a similar analysis observes that while the authority of the sages may indeed stem from biblical origins, as their mandates are not explicitly identified in the Torah no desecration to God’s Name is incurred by their violation. Hence, the path is clear for the rabbis to step aside and allow dignity to take precedence. R. Halberstam takes this further and suggests adding yet another category to this list. Just as rabbinical commandments are overridden by dint of their lack of overt reference, so, too, even genuine biblical commandments that are not explicitly expressed, or principles transmitted to Moshe at Sinai, may also be treated in that manner. This last extension was considered insufficiently grounded for the Responsa Minchat Elazar (I, 24:1).Munczaczer Rebbe, who does endorse the initial thesis. Nonetheless, R. Shmuel Engel, in his response (VIII, 209), does support this innovation, noting that it exists also in the work Limmudei Hashem, who explains in this manner an unusual ruling of the Rambam. Thus, it may be that the precedence of human dignity over monetary matters and rabbinical commandments is a function of mechi1ah. It consequently seems indicated that this also plays a role in explaining the inclusion of passively violated biblical concepts in these categories. To actively flout God’s will (or explicit will, according to the Tzanzer Rebbe) is a desecration of His Name and at variance with “There is no wisdom, no understanding, no counsel in opposition to God.” However, where this is not the case, it seems possible that God Himself forgives some of His honor for the sake of that of His creations. An extreme example of this can be found in a midrashic comment on God’s destruction of the donkey of Bilam. This was out of consideration for Bilam’s honor; a living example of his inferiority to his own donkey would be the source of considerable embarrassment. An understanding of this phenomenon is somewhat challenging. It is not difficult to see that as people are creations in the Divine image, honor and respect shown to a human being translates to his Creator. Nonetheless, it could also be assumed that the honor of God Himself would be inclusive of all such gestures, and thus has no purpose in deferring to that of the Creation, at best a secondary representation. Certainly Bilam, an almost paradigmatic example of opposition to God’s will, is an unworthy recipient of honor, in light of the testament to God’s majesty that would be evident in the miracle of a speaking animal. The key may lie in a paradox that exists within the concept of honor. The great ethicists (See, for example, R. Eliyahu HaKohen of Izmir, Shevet Mussar, ch. 43.) point to an inconsistency in the behavior of vain individuals. With an exaggerated sense of self-worth, they feel little regard for the status of others. Nonetheless, were this really the case, the very honor and adulation they so prize would be worthless. Of what value is the esteem of an insignificant person? Thus, they are forced to consider other individuals worthy, only to the extent necessary to accept their praise. Thus, receiving honor is only possible if it is first ceded somewhat to those from whom it is desired. It might be suggested that this is the message of the statement in Pirkei Avot, (4:1) “Who is honored? He who honors others.” Not only is someone who is respectful to others worthy of such treatment himself, as the Mishnah states openly, but further it is only possible for a person to receive honor if he first accords it to others, deeming them appropriate sources of expressions of esteem. As Rabbeinu Yonah comments, “All honor that one shows to people, he is showing to himself.” Perhaps this may contribute to understanding God’s mechilah of His honor from His creations. The very concept of honor is one that is built upon mechilah, and is fed by its utilization; showing honor to another ultimately strengthens the latter’s ability to appropriately reciprocate. Thus, all respect shown to human beings reflects onto God in two ways; first, in that He is their Creator, and second, in that it allows them the authority to respect Him in a meaningful manner. Thus, it may be that the fundamental operating element in the overriding of other principles for the sake of human dignity is that of mechilah by the possessor of monetary rights; by the rabbinical sages; and, to some extent, by God Himself. IV. The “Values Clash” Theory Alternatively, the explanation may be somewhat more prosaic. The concern for human dignity is a religious value like others; when irreconcilably placed in conflict, it is understood that one must prevail over the other. Whether or not k’vod habriyot is indeed dominant will depend in each instance on the severity of its competition. In this area, the distinction between active and passive deviations from Torah law is instructive. This is a differentiation found elsewhere in halakhah, namely in the authority of the Rabbis, under certain circumstances, to mandate disobedience to a biblical imperative (Yevamot 90b), as well as the financial strain imposed (see Rama O.C. 556). The reasoning for this distinction is the topic of much discussion. A number of possibilities suggest themselves. In some respects, an active transgression is considered more severe than one passive in nature; thus, the differentiation may be qualitative in essence. If one indeed understands the precedence of k’vod habriyot to stem from its attaining higher priority in a clash of values, this variance in stringency is certainly relevant to determining which consideration shall emerge as primary. An analysis along these lines is suggested by the Steipler Gaon (Kehilot Ya’akov to Berakhot (10) and Shevuot (26).) Alternatively, it may be that the distinction is not due to severity but to the nature of action itself. When faced with a conflict in which any action taken will have negative consequences, either for the purposes of human dignity or for other religious values, the safest course of behavior may be to abstain from any visible activity. From some standpoint, this approach is palatable to one who favors an understanding based on mechilah. While an active transgression is a desecration of God’s Name, forgiving the performance of an obligation is more readily acceptable when warranted. V. Applications of the Two Theories Thus, the two above theories serve as possible models to explain the three categories in the Talmud, and as well shed light on the different sides in the three controversial categories. The issue argued by Rashi and Tosafot, that of “weakened” prohibitions, is illuminated by these possibilities. If the core issue is the conflict, with biblical prohibitions remaining supreme, the position of Tosafot may be understood: when a prohibition for some reason assumes a lower status, it may no longer retain the primacy given to undiminished prohibitions. Alternatively, if the issue is one of mechilah, employed in all instances other than active disgraces against God’s authority, then no distinction should be made for a “weakened” prohibition; it remains an active offense. Thus, the position of Rashi, who appears not to accept this category. This range of options is perhaps demonstrable in another dispute among rishonim, the above mentioned difference between the Rambam and the Rosh concerning inadvertent transgressions. Here, too, the two options seem relevant. If the conflict between Torah law and human dignity is adjudicated on the basis of severity, a violation performed without intent is surely of a lesser degree of offense, and perhaps the position of the Rosh is indicated in recognizing such a distinction. Alternatively, if the priority is avoiding an active infraction and the accompanying desecration of God’s Name, the actual perpetrator of the action may not be consequential, as in the Rambam’s view. Likewise, the question debated by the Divrei Chaim and his detractors, if a category can be created for non-explicit prohibitions, is also affected, as discussed above. VI. Further Applications In this light, a comment of Tosafot is particularly informative. The Talmud (Shevuot 30b) discusses the responsibility of an esteemed Torah scholar to appear before a court presided over by rabbis of a lesser stature, thus compromising his own prestige, and concludes that there is such an obligation. The Tosafot (s.v. aval issura) observe that to fail to appear would be passive in nature, and thus considerations of his honor should precede those of his testimony. Two answers are offered, both of which, if accepted into halakhah, significantly adapt the parameters of the concept under discussion. The first suggestion is that although k’vod habriyot may indicate deferring performance of a religious obligation, this is only in the event of a significant humiliation (g’nai gadol); when the diminishment to one’s honor is minor (g’nai katan), however, the mitzvah prevails. The second possibility is that the assumption of passivity in this instance is misleading. Following the incorrect judgment that will occur as a result of the missing testimony, active transgressions against the Torah will take place, albeit at the hands of another. Thus, even though the scholar himself will not perform an action, this case cannot be treated as passive and thus k’vod habriyot considerations are secondary. The two approaches in Tosafot parallel, to an extent, the possible rationales for treating passive violations differently. If one assumes that these instances are more susceptible to being ruled by considerations of dignity because of a reduced severity, then it follows that a concurrent evaluation should be made of the degree of humiliation involved, to more properly judge which should prevail. In such a context, a distinction between major and minor degradation is more readily understood. Alternatively, if the priority given to avoiding active transgressions stems from the egregiousness of a visible act in opposition to Torah law, it may not be relevant that the act is being performed by another. Since some individual will commit an actual misdeed, the overall situation is governed by that reality. Another general issue may trace itself back to the central mechanism governing the relationship between k’vod habriyot and the laws that conflict. When indeed human dignity does prevail, what becomes the status of the overtaken halakhah? It might be assumed that it is completely removed (hutrah), no longer to be taken into consideration as long as dignity is at stake. Alternatively, it may be that the halakhah remains firmly in place, merely suspended for the necessity of avoiding humiliation (d’chuyah). R. Yosef Engel (Gilyonei HaShas, Berakhot 19b) assumes this is certainly the case. To whatever extent both can be accommodated, this must be done. If mechilah is indeed employed, it might be suggested that the prohibition or obligation has been completely “forgiven,” stepping away as a consideration. Alternatively, if a conflict of values is forcing one to be upheld at the expense of the other, it would seem that license to deviate from halakhah is only as far as k’vod habriyot necessitates it absolutely. R. Hershel Schachter (B’Ikvei HaTzon, pp. 88-89.), focusing on rabbinical prohibitions, suggests that they are completely removed from consideration but for other reasons. Citing Rav Soloveitchik, he writes that the concern for another’s dignity constitutes an absolute obligation between two people, similar to a monetary obligation. As such, the Rabbis have no permission to interfere with this relationship by instituting a law that would obstruct it. However, as he observes, this explanation applies only to the dignity needs of another; deviations for the purpose of one’s own honor require a different explanation. The relevance of this question is significant. On the purely spiritual level, Responsa Chavvot Yair (II,36). considers the effect upon the soul, questioning whether a transgression committed for the sake of human dignity must be followed by some form of atonement. He concludes that this is called for, indicating that while the needs of k’vod habriyot are often paramount, the halakhic price paid is nonetheless not discounted without another thought. The Ohr Sameach (Hilkhot Yom Tov 6:14) considers two issues that also are related. The first is that of whether one is permitted to perform an active gesture of honor to a king in violation of halakhah, when the gesture’s absence would not be considered a humiliation. The question of whether the Torah concept steps aside only because of the concern of avoiding human degradation, or instead flows from the forgiving of the honor of God or of the Rabbis in favor of that of the individual, is fundamental to this exploration. His second issue is the permissibility of sewing garments of honor on the intermediate days of a festival, when such work is normally forbidden. He responds to this question by advancing a principle. K’vod habriyot can only allow the prohibited when the transgression will alleviate the challenges to dignity at the same time as the violation is occurring (b’idna). Deviating from the Torah now in order to prevent some future embarrassment cannot be countenanced. This rule of simultaneity is common to areas of halakhah in which one value prevails over another in conflict with it, the implication, then, is that this evaluation is present here as well. The Noda B’Yehudah, in the aforementioned responsum concerning the adulterous son-in-law, adds another rule to this system. One of his reasons for advocating informing the father-in-law of the situation is that otherwise, he would live the rest of his life in violation. Even assuming a concern of k’vod habriyot, a transgression is allowed only if it will constitute a temporary deviation from halakhah. However, to allow an infraction to continue permanently cannot be sanctioned. This limitation suggests that the prohibition is not totally forgiven but merely concedes to human dignity out of necessity. R. Shlomo Kluger (Chokhmat Shlomo to Orach Chaim 13) discusses another such element, that of the degree of responsibility the individual carries for his own situation. If a challenge to one’s dignity is a result of one’s own negligence (p’shiah), perhaps this impacts on his right to ask the Torah to bear the costs of his dereliction. Such a conclusion would imply again that the overlooking of halakhah comes only as a result of an irreconcilable conflict; the individual’s complicity in creating his situation detracts from the weight of his concerns. Slightly different, but related, is the question posed by R. Akiva Eiger (Chiddushim, O.C. 13). His analysis concerns the degree to which one must evaluate all the options available. The case in question concerns a man whose tallit has become invalid, and thus unfit for wear, just prior to morning services. To sit in synagogue without a tallit would be embarrassing, and to wear this garment with invalid fringes would actually only be a passive violation of the obligation to attach proper fringes. Thus, it would seem clear that he is permitted to wear this tallit. However, another option also exists; he can pray at home, without a tallit, avoiding both embarrassment and the wearing of an unqualified garment. While certainly it is normally preferable to pray with the community, perhaps such considerations must be sacrificed to avoid a conflict between the fundamental halakhah and human dignity. Once again, it becomes significant to query the nature of the relationship between halakhah and dignity. If the halakhah is forgiven, it might not be necessary to search for alternative results; for example, in this case, why compromise the quality of prayer when the issue of the tallit is no longer a concern. However, if the point of Torah law is deferred but nonetheless operative, it is worthwhile to attempt to find an option that more fully allows a balance of the values involved. A question raised by Yeshuot Ya’akov, Orach Chaim 3:12. goes further toward determining the nature of this relationship. We are aware that k’vod habriyot can often overwhelm an imperative of halakhah. What, however, if the considerations of dignity challenge not one, but two or more points of law? Does k’vod habriyot defeat all opposition, undaunted by quantitative realities? If the law is indeed forgiven, it may not matter that this mechilah needs repeated utilization. Alternatively, if human honor merely prevails in conflicts, it is not to be assumed that it will continue to dominate when its rival is doubled or tripled. Along these lines, the Pri Megadim (Shoshanat HaAmakim, Klal 6). interprets the Talmud’s giving precedence to k’vod habriyot over milah and the Passover sacrifice as applying even to both of those together, while many authorities may disagree.

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