Human dignity as a legal consideration

It appears that considerations of human dignity are worthless in contrast with the severity of a desecration of the Almighty's name through transgressing a commandment.

August 24, 2006 08:16
Human dignity as a legal consideration

shatnez 88. (photo credit: )

Our sages state a rule (B. Berachot 19b): One who realizes that he is wearing a garment made from a forbidden mixture of wool and linen (Leviticus 19:19, Deuteronomy 22:11), must promptly remove the clothing, even if he finds himself in a public area and undressing will cause him considerable humiliation. Explaining the reason for this callous ruling and disregard for the shame of our exposed protagonist, the Talmud offers a biblical verse: There is no wisdom and there is no understanding and there is no counsel against God (Proverbs 21:30) - the law is enshrined and human embarrassment does not automatically abrogate Divine regulations. It appears that considerations of human dignity are worthless in contrast with the severity of a desecration of the Almighty's name through transgressing a commandment. This is a harsh conclusion and is the question considered in an episode that appears elsewhere in the Talmud (B. Menahot 37b-38a). The sage Ravina was once walking behind Mar bar Rav Ashi on Shabbat. From his vantage point, Ravina noticed that unbeknownst to Mar bar Rav Ashi the tzitzit from one fringe of his four-cornered garment was torn. While wearing such a garment on Shabbat may not be a crime, for it is prohibited on Shabbat to tie the permanent knots for the fringes (Mordechai, 13th century, Germany), wearing the garment in public constituted a transgression of the prohibition of carrying on Shabbat, for such a cloth cannot truly be considered a garment. Mar bar Rav Ashi continued on his way, unaware of his crime. We would expect Ravina to yell after his friend, for against the commandments of God there is no counsel, and Mar bar Rav Ashi would have undressed right there in the marketplace with no regard for any accompanying shame. Strangely Ravina kept silent, saying nothing and following the sage home. When they reached the home of Mar bar Rav Ashi, Ravina revealed what had transpired. Mar bar Rav Ashi responded: "Had you told me, I would have thrown off my garment right there!" Indeed human dignity is no consideration when faced with a transgression of a divine command. Unhappy with the suggestion implied by Mar bar Rav Ashi's exclamation, the Talmud asks: Is not human dignity so great a concern that it supersedes even negative commandments in the Torah? Mar bar Rav Ashi need not have humiliated himself by publicly undressing even if he would have known that his tzitzit were invalid, since human dignity would supersede the biblical prohibition against carrying on Shabbat! The Talmud continues, explaining that human dignity does not override all biblical proscriptions; it only takes priority over one - the prohibition against flouting rabbinic authority. We are instructed: You shall not deviate from the word that they will tell you (Deuteronomy 17:11). This verse empowers halachic authorities to legislate and makes rabbinic enactments binding under Torah law. This regulation, however, retreats when its existence would otherwise result in human degradation. Returning to our two scholars making their way through the streets on Shabbat, one carrying a garment and the other following wordlessly, Mar bar Rav Ashi was chastising his colleague: Carrying on Shabbat is no rabbinic enactment; you should have told me and I would have cast my garment in public without regard for any feelings of shame! The Talmud offers an alternative version of the incident: Ravina did indeed call his colleague's attention to the ripped garment, notifying Mar bar Rav Ashi that he must remove the cloth rather than carry it through the streets on Shabbat. Mar bar Rav Ashi, however, balked: "Do you think that I need to cast off my garment? Does not human dignity supersede negative commandments in the Torah? I need not embarrass myself." The Talmud questions Mar bar Rav Ashi's shying from undressing: As we have noted, the rule positing the superiority of human dignity applies only to rabbinic legislation, while carrying in the streets is a biblical prohibition! The passage concludes: Carrying in a public domain is indeed prohibited by Torah law. Mar bar Rav Ashi, however, was walking through a thoroughfare that was defined as "public" only according to rabbinic legislation. According to Torah law this area would have been considered private, perhaps because it was narrow or perhaps because it did not have the requisite number of people traversing it. In an attempt to bring the law in line with contemporary realities, the sages redefined the area as "public" and extended the carrying prohibition to this area. When applying this new rabbinic categorization results in a disregard for human dignity, the area reverts to its original status. Thus Mar bar Rav Ashi was permitted to remain clothed. The common thread to both versions of this story is that concern for human dignity trumps rabbinic legislation. This is also the thrust of another law (B. Shabbat 81a-b). Generally handling stones on Shabbat is forbidden under the rabbinic legislation of muktzeh - the prohibition against handling objects that have no use or forbidden use on Shabbat. Our sages tell us that one may take three sharp-sided stones, - in the days before toilet paper - into the latrine on Shabbat. The abrogation of the rabbinic muktzeh ban is rooted in a concern for human dignity. Similarly, these stones can be taken to a rooftop outhouse even though this involves physical exertion which is rabbinically proscribed. Again, the license is granted for the sake of human dignity. Here lies the key to understanding rabbinic legislative power. The sages are charged with the task of developing the law, innovating and generally ensuring that Jewish law does not become petrified. While fulfilling this role, halachic authorities must take a whole fleet of considerations into account. The written word is but one piece, albeit the central facet. Other factors, such as discomfort and pain, financial consequences and of course human dignity are not disregarded. While the divine origins of the written code make it relatively unmalleable in human hands, the developed and developing rabbinic additions to the code strive to make Jewish law a living, relevant and vibrant tradition. The writer is director of Advanced Programs at the Pardes Institute of Jewish Studies, teaches at Midreshet Lindenbaum and is a rabbi in Tzur Hadassah.

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