הָעוֹמְדִים בַּשּׁוּרָה וְכוּ׳. תָּנוּ רַבָּנַן: שׁוּרָה הָרוֹאָה פְּנִימָה — פְּטוּרָה, וְשֶׁאֵינָהּ רוֹאָה פְּנִימָה — חַיֶּיבֶת. רַבִּי יְהוּדָה אוֹמֵר: הַבָּאִים מֵחֲמַת הָאָבֵל — פְּטוּרִין, מֵחֲמַת עַצְמָן — חַיָּיבִין.
We learned in the mishna that those standing in the row, those in the interior row, are exempt from reciting Shema and the others are obligated. The Sages taught this more expansively in the Tosefta: The consolers standing in a row from which one sees inside the area where the mourners are passing are exempt, and those standing in a row from which one does not see inside are obligated. And Rabbi Yehuda elaborates and says: The consolers standing in the row who come on account of the bereaved are exempt, while those who come on account of their own curiosity are obligated to recite Shema.
אָמַר רַב יְהוּדָה אָמַר רַב: הַמּוֹצֵא כִּלְאַיִם בְּבִגְדוֹ — פּוֹשְׁטָן אֲפִילּוּ בַּשּׁוּק. מַאי טַעְמָא: ״אֵין חׇכְמָה וְאֵין תְּבוּנָה וְאֵין עֵצָה לְנֶגֶד ה׳״, כׇּל מָקוֹם שֶׁיֵּשׁ חִלּוּל הַשֵּׁם אֵין חוֹלְקִין כָּבוֹד לָרַב.
We learned that some who come to console the bereaved are exempt from Shema as a means of honoring the deceased. The Gemara expands the discussion to raise the general question: To what degree does preserving human dignity takes precedence over mitzvot enumerated in the Torah? Rav Yehuda said that Rav said: One who discovers diverse kinds [kilayim], i.e., a prohibited mixture of wool and linen, in his garment, must remove them even in the public marketplace. He may not wait until he reaches home. What is the reason for this? As it is stated: “There is neither wisdom, nor understanding, nor counsel against the Lord” (Proverbs 21:30). From here, the general principle: Anywhere that there is desecration of the Lord’s name, one does not show respect to the teacher, is derived.
מֵתִיבִי: קָבְרוּ אֶת הַמֵּת וְחָזְרוּ, וְלִפְנֵיהֶם שְׁתֵּי דְרָכִים, אַחַת טְהוֹרָה וְאַחַת טְמֵאָה, בָּא בַּטְּהוֹרָה — בָּאִין עִמּוֹ בַּטְּהוֹרָה, בָּא בַּטְּמֵאָה — בָּאִין עִמּוֹ בַּטְּמֵאָה מִשּׁוּם כְּבוֹדוֹ. אַמַּאי? לֵימָא ״אֵין חׇכְמָה וְאֵין תְּבוּנָה לְנֶגֶד ה׳״!
The Gemara cites several sources to challenge this principle. The Gemara raised an objection from a baraita: After they buried the deceased and returned, and on their way there are two paths before them, one ritually pure and one ritually impure, e.g., it passes through a cemetery, if the mourner comes on the pure path, they come with him on the pure path; if he comes on the impure path, all of the funeral participants accompany him on the impure path in order to show him respect. Why would they do this? Let us say here too that, “There is neither wisdom, nor understanding…against the Lord!”
תַּרְגְּמַהּ רַבִּי אַבָּא בְּבֵית הַפְּרָס דְּרַבָּנַן.
Rabbi Abba explained that the baraita is referring to a path that passes through an area where there is uncertainty with regard to the location of a grave or a corpse [beit haperas]. For example, with regard to a field in which there is a grave that was plowed and no longer intact, the entire field is deemed impure due to concern that the plow scattered bones throughout the field. The field is impure only by rabbinic law but not according to Torah law. Since it is only prohibited by rabbinic law, one is permitted to walk through the field to show the mourner respect.
דְּאָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: מְנַפֵּחַ אָדָם בֵּית הַפְּרָס וְהוֹלֵךְ. וְאָמַר רַב יְהוּדָה בַּר אָשֵׁי מִשְּׁמֵיהּ דְּרַב: בֵּית הַפְּרָס שֶׁנִּדַּשׁ — טָהוֹר.
The Gemara cites proof that the legal status of a beit haperas is unlike the legal status of impurity by Torah law: Rav Yehuda said that Shmuel said: One who passes through a beit haperas may blow on the dust before taking each step, so that if there is a bone beneath the dust, he will expose it, avoid it, and walk. One may not rely on that method of examination with regard to impurity by Torah law. And Rav Yehuda bar Ashi said in the name of Rav: A beit haperas that has been trodden underfoot, creating a path, is pure, and one no longer need be concerned about bones. Clearly, the entire prohibition is a stringency decreed by the Sages.
תָּא שְׁמַע דְּאָמַר רַבִּי אֶלְעָזָר בַּר צָדוֹק: מְדַלְּגִין הָיִינוּ עַל גַּבֵּי אֲרוֹנוֹת שֶׁל מֵתִים, לִקְרַאת מַלְכֵי יִשְׂרָאֵל. וְלֹא לִקְרַאת מַלְכֵי יִשְׂרָאֵל בִּלְבַד אָמְרוּ אֶלָּא אֲפִילּוּ לִקְרַאת מַלְכֵי אוּמּוֹת הָעוֹלָם, שֶׁאִם יִזְכֶּה, יַבְחִין בֵּין מַלְכֵי יִשְׂרָאֵל לְמַלְכֵי אוּמּוֹת הָעוֹלָם. אַמַּאי? לֵימָא ״אֵין חׇכְמָה וְאֵין תְּבוּנָה וְאֵין עֵצָה לְנֶגֶד ה׳״!
The Gemara cites additional proof with regard to the extent to which human dignity overrides mitzvot in the Torah. Come and hear, as Rabbi Elazar bar Tzadok the priest said: I and my fellow priests would jump over coffins of the deceased in order to hurry towards kings of Israel to greet them. And they did not say this only towards kings of Israel, but they said this even towards kings of the nations of the world, so that if one will be privileged to witness the redemption of Israel, he will distinguish between kings of Israel and kings of the nations of the world. The priest violated the Torah prohibition to become ritually impure through contact with the dead, in order to show respect for a king. And why is this? Let us say here too: “There is neither wisdom, nor understanding, nor counsel against the Lord.”
כִּדְרָבָא. דְּאָמַר רָבָא: דְּבַר תּוֹרָה, אֹהֶל, כֹּל שֶׁיֵּשׁ בּוֹ חָלָל טֶפַח — חוֹצֵץ בִּפְנֵי הַטּוּמְאָה. וְשֶׁאֵין בּוֹ חָלָל טֶפַח — אֵינוֹ חוֹצֵץ בִּפְנֵי הַטּוּמְאָה.
The Gemara responds to this challenge by saying that it must be understood in accordance with the opinion of Rava, as Rava said: By Torah law, a tent over a corpse, as long as there is a handbreadth of space between the corpse and the tent over it, constitutes a barrier before the spread of impurity and nothing above the tent can become ritually impure due to impurity imparted by the corpse. And when there is not a handbreadth of space between the corpse and the tent over it, the tent does not constitute a barrier before the spread of impurity and the “pressed” ritual impurity, can reach the heavens.
וְרוֹב אֲרוֹנוֹת יֵשׁ בָּהֶן חָלָל טֶפַח. וְגָזְרוּ עַל שֶׁיֵּשׁ בָּהֶן מִשּׁוּם שֶׁאֵין בָּהֶן. וּמִשּׁוּם כְּבוֹד מְלָכִים לָא גְזַרוּ בְּהוּ רַבָּנַן.
Most coffins have a handbreadth of space. Consequently, their impurity does not spread above the coffin. However, the Sages issued a decree regarding coffins in which there is a handbreadth of space because of those coffins in which there is not. Nevertheless, due to respect for kings, the Sages did not issue a decree in a case involving them and the priests were permitted to jump over the coffins, as it is permitted by Torah law. Therefore, there is no proof from here regarding the question of whether or not human dignity overrides Torah law.
תָּא שְׁמַע: גָּדוֹל כְּבוֹד הַבְּרִיּוֹת שֶׁדּוֹחֶה [אֶת] לֹא תַעֲשֶׂה שֶׁבַּתּוֹרָה.
The Gemara cites an additional proof from a baraita: Come and hear: Great is human dignity, as it overrides a prohibition in the Torah.
וְאַמַּאי? לֵימָא ״אֵין חׇכְמָה וְאֵין תְּבוּנָה וְאֵין עֵצָה לְנֶגֶד ה׳״! תַּרְגְּמַהּ רַב בַּר שְׁבָא קַמֵּיהּ דְּרַב כָּהֲנָא בְּלָאו דְּ״לֹא תָסוּר״. אֲחִיכוּ עֲלֵיהּ, לָאו דְּ״לֹא תָסוּר״ דְאוֹרָיְיתָא הִיא?!
The Gemara asks: Why? Let us also say here: “There is neither wisdom, nor understanding, nor counsel against the Lord.” Rav bar Shaba interpreted this prohibition, which is overridden by human dignity, before Rav Kahana as referring to the prohibition of: “According to the Torah taught to you and the ruling handed down to you, you shall do, you shall not deviate to the left or the right from that which they tell you” (Deuteronomy 17:11). The Yeshiva students laughed at him, as the prohibition of “you shall not deviate” is by Torah law, like all other Torah prohibitions. Why should human dignity override it any more than any other Torah prohibition?
אָמַר רַב כָּהֲנָא: גַּבְרָא רַבָּה אָמַר מִילְּתָא, לָא תְּחִיכוּ עֲלֵיהּ. כׇּל מִילֵּי דְרַבָּנַן אַסְמְכִינְהוּ עַל לָאו דְּ״לֹא תָסוּר״, וּמִשּׁוּם כְּבוֹדוֹ שְׁרוֹ רַבָּנַן.
Rav Kahana replied to them: A great man has spoken, do not laugh at him. The Sages based all rabbinic law on the prohibition of “you shall not deviate”; however, due to concern for human dignity, the Sages permitted suspension of rabbinic law in cases where the two collide. All rabbinic decrees are predicated on the mitzva in the Torah to heed the judges in each generation and to never stray from their words. Therefore, when the Sages suspend a decree in the interest of preserving human dignity, human dignity is overriding a Torah prohibition. In any case, it only overrides rabbinic decrees.
תָּא שְׁמַע: ״וְהִתְעַלַּמְתָּ מֵהֶם״ — פְּעָמִים שֶׁאַתָּה מִתְעַלֵּם מֵהֶם, וּפְעָמִים שֶׁאֵין אַתָּה מִתְעַלֵּם מֵהֶם.
The Gemara cites an additional proof from a baraita: Come and hear: With regard to the laws of returning a lost object, it is stated: “You shall not see the ox of your brother or his sheep go astray and ignore them; return them to your brother” (Deuteronomy 22:1). The baraita explains that the seemingly extraneous expression and disregard them must be understood to give license that at times you disregard lost objects and at times you do not disregard them.
הָא כֵּיצַד? אִם הָיָה כֹּהֵן, וְהִיא בְּבֵית הַקְּבָרוֹת, אוֹ הָיָה זָקֵן וְאֵינָהּ לְפִי כְבוֹדוֹ, אוֹ שֶׁהָיְתָה מְלַאכְתּוֹ מְרוּבָּה מִשֶּׁל חֲבֵרוֹ, לְכָךְ נֶאֱמַר ״וְהִתְעַלַּמְתָּ״. אַמַּאי, לֵימָא ״אֵין חׇכְמָה וְאֵין תְּבוּנָה וְאֵין עֵצָה לְנֶגֶד ה׳״!
How so? If he was a priest and the lost object was in the cemetery, or if he was an elder and it is beneath his dignity to tend to a lost object of that kind, or if he had more work to do than another person and he does not want to set it all aside when another person is available to tend to the lost object. Therefore, with regard to those cases it is stated: And disregard them to permit one to refrain from returning the object. Why? Let us say here, too: Although handling the lost object would be beneath his dignity, “there is neither wisdom, nor understanding, nor counsel against the Lord.”
שָׁאנֵי הָתָם, דִּכְתִיב ״וְהִתְעַלַּמְתָּ מֵהֶם״. וְלִיגְמַר מִינַּהּ? אִיסּוּרָא מִמָּמוֹנָא לָא יָלְפִינַן.
The Gemara answers: There it is different, as it is written: “And disregard them,” indicating that under certain circumstances one is permitted to disregard a lost object. In that case, there is a biblical directive that creates an exception to the prohibition: “You may not disregard” (Deuteronomy 22:3). We found a case in which human dignity overrides a Torah prohibition. The Gemara suggests: Let us derive a general principle that human dignity takes precedence over all mitzvot in the Torah from this case. This possibility is rejected: We do not derive halakhot pertaining to prohibitions from monetary laws, and the case of the lost object merely entails a monetary loss, unlike other prohibitions.
The Gemara cites an additional proof from a baraita. Come and hear what was said in the Torah with regard to the Nazirite: “He shall not become impure for his father or his mother or his brother or his sister in their death, for the crown of his God is on his head” (Numbers 6:7). Since it was already written with regard to the Nazirite: “He shall not come upon a dead body” (Numbers 6:6), why is it necessary to elaborate and specify his parents and siblings?
״וּלְאַחֹתוֹ״ מַה תַּלְמוּד לוֹמַר? הֲרֵי שֶׁהָיָה הוֹלֵךְ לִשְׁחוֹט אֶת פִּסְחוֹ, וְלָמוּל אֶת בְּנוֹ, וְשָׁמַע שֶׁמֵּת לוֹ מֵת, יָכוֹל יַחְזוֹר וְיִטַּמָּא? — אָמַרְתָּ: לֹא יִטַּמָּא.
The Sages derived through halakhic midrash that each of these relationships come to teach a specific nuance of the law. They learned: To what purpose did the verse state: And his sister? To teach that one who was going to slaughter his Paschal lamb and to circumcise his son, both of which are positive mitzvot that if he fails to fulfill them, he is punished with karet, and he heard that a relative of his died, I might have thought that he should return and become ritually impure with the impurity imparted by a corpse. You said: “He shall not become impure”; the death of his relative will not override so significant a mitzva from the Torah.
יָכוֹל: כְּשֵׁם שֶׁאֵינוֹ מִטַּמֵּא לָהֶם כָּךְ אֵינוֹ מִטַּמֵּא לְמֵת מִצְוָה — תַּלְמוּד לוֹמַר ״וּלְאַחוֹתוֹ״ — לַאֲחוֹתוֹ הוּא דְּאֵינוֹ מִטַּמֵּא,
I might have thought: Just as he does not become impure for his relatives, so he does not become impure for a corpse with no one to bury it [met mitzva]. The verse states: “And his sister”; he may not become impure for his sister, as someone else can attend to her burial,