Kavod HaBriyot (Halachic Methodology 10, Shaat HaDechak Part 2)

Perhaps one of the most controversial issues in psak today is the nature of Kavod Habriyot and its function in psak.  Shiur and sources (which are important to see inside are available: here).

Before beginning, I offered the following framing for the issue.  It is well known that there are three cardinal sins for which a Jew must forfeit his life; all other sins are pushed aside for the sake of human life.  At first glance, Tosafot and the Chinuch argue about the nature of these laws.  Tosafot argue that intuitively one would know that all mitzvoth can be pushed aside for human life.  The only reason the Torah provides a possuk to allow one to violate a law is so people will not extrapolate from the cardinal sins to all other sins.  In other words – the given is that life is more important than mitzvoth, and one needs to prove otherwise. The Chinuch, on the other hand, when explaining the cardinal sins, writes that a good servant will give up his life for his master, and if we were not willing to do this for God, we would be derelict in our commitments.  In other words, given is that all mitzvoth are cardinal.  By God’s good grace, he does not require us to actually die for mitzvoth.  I have suggested that there is not dispute.  From God’s perspective, he values human life and therefore does not want us to give up our lives for most mitzvoth.  From our perspective, we must be willing to.  In practice, therefore, we rarely are asked to give up our lives, but when we are, we should recognize this is the exception and not the rule from God’s perspective.  [This is fleshed out in my article in Beit Yitzchak 41.]

With regard to Kavod HaBriyot, I suggest a similar model.  Normally, God does value our dignity and does not want Torah to violate it.  However, when we must suffer an indignity for the sake of the Torah, this is not unfair.  God could have asked us to live undignified lives.  After all, Kavod HaBriyot probably stems from the Godliness of man – meaning God gets to choose the parameters of our dignity.  Any challenge to this truth is an attack on the nature of the Torah and its obligations.

Now moving to the issue itself:

The Gemara in Brachot declares in a seemingly sweeping rule that “great is kavod habriyot that it can push aside a negative prohibition.”  The Gemara promptly limits the understanding of the rule to rabbinic prohibitions, and biblical prohibitions that are monetary or passive in nature.  R. Lichtenstein has noted that despite the relatively minor scope of the dispensation by the end of the Gemara, the rhetorical force of the original formulation is critical.  It underscores the importance that human dignity has in the Torah, as I noted above.  Yet, in practice it cannot undermine an active biblical prohibition because nothing stands up to our obligations to God.  The Rishonim add caveats to this, adding either weaker prohibitions that are not universal (Tosfos) or accidental violations (Rosh vs. Rambam) to the list of laws that are pushed aside.  The Yerushalmi, on the other hand, expands the heter to biblical laws.  The commentaries often different models to explain why these laws can be pushed aside, either positing that the rabbis/people who suffer monetarily would forgive the violation to their laws or money, or that kavod habriyot is simply more important than some values in Torah.

However, the cases in the Gemara deal with a very specific type of conflict.  The classic example, of someone who is wearing clothes made of shatnez and must publicly strip to avoid the prohibition, highlights this.  The conflict is accidental.  The issur of shatnez is not undignified.  It just happens to be that when one is in public wearing shatnez, the issur would cause one to endure disgrace.  A relatively common the example is the dispensations offered by some for a person who finds himself in a bathroom without precut toilet paper.  The issur of cutting is not offensive – it just accidentally causes one to be in an awkward position.   As R. Lichtenstein notes, however, to claim that any law by definition, biblical or rabbinic, contradicts kavod habriyot, is nonsensical.  As noted above, the parameters of human dignity are defined by God (and by extension, those who interpret his will.)  To deny this is to attack the foundations of the Torah.

This brought me to the gross misuse of this phrase by some people, such as Daniel Sperber (a point made by his son in a footnote to his book, Darka Shel Halacha).  Without getting into all the Halachic arguments in favor of or against partnership minyanim, Sperber’s approach suffers from a fatal flaw.  He claims that not giving women aliyot is a violation of their kavod habriyot, and therefore it pushes aside the derabanan (based on kavod hatzibbur) that prevents them.  This argument essentially accuses the rabbis who originally forbade the practice, all generations who maintained the prohibition, and any shul that does not allow women aliyot, of being sexist and denying women of their basic rights.  [Note that other arguments for partnership minyanim do not make this claim, making local arguments about the nature of kavod hatzibbur that do not impugn the religiosity of previous generations or shuls who do not accept their approach.]  While Sperber may deny the implications, this is the ineluctable conclusion of using the notion of kavod habriyot to waive the ban the Gemara itself imposed (whether or not it was based on kavod hatzibbur).  This is an attack on the Halachic system and those who live by it and have lived by it.  If not giving women aliyot was fundamentally wrong, then why did Chazal recognize the limitation because of kavod hatzibbur as legitimate?  Subjective or not, Chazal did impose this restriction, so as Jews committed to the rabbinic system, we cannot claim that the law as they set it up was sexist.  There are many other problems with his use of the term, but this, I think, is the most glaring and offensive.  For others, I have included in the sources a summary by the Frimers, and I’m sure they will flesh out their arguments in their upcoming article in Tradition.  After that article comes out, and I have time to digest it, I would hopefully spend a shiur on the more local Halachic arguments in favor and against partnership minyanim (Shapiro’s, for example, which while I may disagree, I do not find offensive).

As R. Lichtenstein notes, we should not deny that the desire to maintain human dignity is important and should shape how we poskan.  That is presumably why the rule was phrased in such a value laden way, as we noted above.  However, we must begin with the assumption that if we had to, we would recognize that God has the right to demand of us things we do not like.  If we try to use meta-values to sweep away laws that we don’t like, no matter what arguments we offer in addition, our intentions are poisoned and our approach flawed.   Again, God may care about our dignity, but we have to be willing to subject our understanding of that value to the Halachic system. Those who listen to the shiur might notice that I was quite heated at this point.  With so much at stake philosophically, you will understand why.

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3 thoughts on “Kavod HaBriyot (Halachic Methodology 10, Shaat HaDechak Part 2)

  1. I question whether you have painted Sperber in too extreme a light. After reading one expression of his argument (http://www.edah.org/backend/JournalArticle/3_2_Sperber.pdf), I think he is saying that because women in today’s society are caused great distress by being barred from the bimah, the concern of kevod ha-beriyot kicks in. This does not necessarily criticize our ancestors, or even many (most?) contemporary congregations, where women did/do not feel this extreme distress.

    My problem with Sperber’s article is that he conflates kevod ha-beriyot, shalom bayit, and “la’asot nachat ruach le-nashim.” The first is the suspension of dinim de-rabanan about human dignity – which includes basic elements of humanity like personal hygiene and avoiding embarrassment. The second is a tendency toward kula (though, as far as I can tell, not outright violation of a de-rabanan) in order to achieve marital harmony. The third does not allow violation of prohibitions at all, but seems to basically mean that we allow/encourage women to do meaningless spiritual actions because it makes them happy.

    Sperber draws on examples from these three types of situations (as well as situations when the idea of kevod ha-beriyot is drawn upon for rhetoric effect rather than halakhic derivation), lumps them into kevod ha-beriyot, claims that you can use all of them in the guise of kevod ha-beriyot to allow issurei de-rabanan, and basically ends up saying that the halakhic process lets you use some twisted and overly expansive definition of kevod ha-beriyot to overturn any din de-rabanan when people start being offended by it.

    I find Sperber’s position offensive not due to insults (again, I don’t think he insults historical figures), but simply because it distorts the Torah I love and live by. The most egregious example I noticed is his deliberate misinterpretation of the gemara in Chagigah about women’s semikhah (the beit ha-mikdash kind), by adding in brackets which imply that we allowed semikhah for women even though it was technically forbidden. This is despite the fact that R. Yose brings the allowance of semikhah as proof that “nashim somekhot reshut,” and the gemara objects to the practice within an opinion that semikhah by women would indeed involve an issur! (That opinion is that you have to push down on the animal, and where semikhah is not required, this would constitute avodah be-kodashim. Also see tosafot ad loc. who clearly state that we may not allow things “la’asot nachat ruach le-nashim” unless there is no issur involved, including berachah le-vatalah, which is (according to tosafot) – you guessed it – de-rabanan!)

    1. If I was giving a shiur on Sperber, I would have gone into it, but yes I agree with you. The distortions are too numerous to count.

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