The Oral Talmud with Benay Lappe and Dan Libenson Episode 64

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. 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.

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!” 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. 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.

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.” 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. 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.

The Gemara cites an additional proof from a baraita: Come and hear: Great is human dignity, as it overrides a prohibition in the Torah. [*See Rashi commentary below.]

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? 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.

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 disregard 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. 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.” 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? 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. 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,

but he does become impure for a met mitzva.

Here too, the question is asked: Let us say that the obligation to bury a met mitzva, which is predicated on the preservation of human dignity, should not override mitzvot explicitly written in the Torah, as it is stated: “There is neither wisdom, nor understanding, nor counsel against the Lord.” The Gemara answers: There it is different, as it is explicitly written: “And his sister,” from which we derive that although he may not become ritually impure to bury his sister, he must do so for a met mitzva.

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: This is a special case, because a case of “sit and refrain from action” [shev ve’al ta’aseh] is different. Engaging in the burial of a met mitzva is not actually in contravention of a mitzva. Rather, by doing so he becomes ritually impure and is then rendered incapable of fulfilling that mitzva. We cannot derive a general principle from here that human dignity would also override a Torah prohibition in a case where that prohibition is directly contravened.

This is what you should think: All cases of "do not do" ["thou shalt not..."] is what was meant.

(1) Like channeled water is the mind of the king in the LORD’s hand; He directs it to whatever He wishes. (2) All the ways of a man seem right to him, But the LORD probes the mind. (3) To do what is right and just Is more desired by the LORD than sacrifice. (4) Haughty looks, a proud heart— The tillage of the wicked is sinful. (5) The plans of the diligent make only for gain; All rash haste makes only for loss. (6) Treasures acquired by a lying tongue Are like driven vapor, heading for extinction. (7) The violence of the wicked sweeps them away, For they refuse to act justly. (8) The way of a man may be tortuous and strange, Though his actions are blameless and proper. (9) Dwelling in the corner of a roof is better Than a contentious wife in a spacious house. (10) The desire of the wicked is set upon evil; His fellowman finds no favor in his eyes. (11) When a scoffer is punished, the simple man is edified; When a wise man is taught, he gains insight. (12) The Righteous One observes the house of the wicked man; He subverts the wicked to their ruin. (13) Who stops his ears at the cry of the wretched, He too will call and not be answered. (14) A gift in secret subdues anger, A present in private, fierce rage. (15) Justice done is a joy to the righteous, To evildoers, ruination. (16) A man who strays from the path of prudence Will rest in the company of ghosts. (17) He who loves pleasure comes to want; He who loves wine and oil does not grow rich. (18) The wicked are the ransom of the righteous; The traitor comes in place of the upright. (19) It is better to live in the desert Than with a contentious, vexatious wife. (20) Precious treasure and oil are in the house of the wise man, And a fool of a man will run through them. (21) He who strives to do good and kind deeds Attains life, success, and honor. (22) One wise man prevailed over a city of warriors And brought down its mighty stronghold. (23) He who guards his mouth and tongue Guards himself from trouble. (24) The proud, insolent man, scoffer is his name, Acts in a frenzy of insolence. (25) The craving of a lazy man kills him, For his hands refuse to work. (26) All day long he is seized with craving While the righteous man gives without stint. (27) The sacrifice of the wicked man is an abomination, The more so as he offers it in depravity. (28) A false witness is doomed, But one who really heard will testify with success. (29) The wicked man is brazen-faced; The upright man discerns his course. (30) There is neither wisdom, nor understanding, nor counsel against the LORD. (31) The horse is readied for the day of battle, But victory comes from the LORD.

(1) You shall not sacrifice to the LORD your God an ox or a sheep that has any defect of a serious kind, for that is abhorrent to the LORD your God.

(2) If there is found among you, in one of the settlements that the LORD your God is giving you, a man or woman who has affronted the LORD your God and transgressed His covenant— (3) turning to the worship of other gods and bowing down to them, to the sun or the moon or any of the heavenly host, something I never commanded— (4) and you have been informed or have learned of it, then you shall make a thorough inquiry. If it is true, the fact is established, that abhorrent thing was perpetrated in Israel, (5) you shall take the man or the woman who did that wicked thing out to the public place, and you shall stone them, man or woman, to death.—

(6) A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness.— (7) Let the hands of the witnesses be the first against him to put him to death, and the hands of the rest of the people thereafter. Thus you will sweep out evil from your midst.

(8) If a case is too baffling for you to decide, be it a controversy over homicide, civil law, or assault—matters of dispute in your courts—you shall promptly repair to the place that the LORD your God will have chosen, (9) and appear before the levitical priests, or the magistrate in charge at the time, and present your problem. When they have announced to you the verdict in the case, (10) you shall carry out the verdict that is announced to you from that place that the LORD chose, observing scrupulously all their instructions to you. (11) You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. (12) Should a man act presumptuously and disregard the priest charged with serving there the LORD your God, or the magistrate, that man shall die. Thus you will sweep out evil from Israel: (13) all the people will hear and be afraid and will not act presumptuously again.

(14) If, after you have entered the land that the LORD your God has assigned to you, and taken possession of it and settled in it, you decide, “I will set a king over me, as do all the nations about me,” (15) you shall be free to set a king over yourself, one chosen by the LORD your God. Be sure to set as king over yourself one of your own people; you must not set a foreigner over you, one who is not your kinsman. (16) Moreover, he shall not keep many horses or send people back to Egypt to add to his horses, since the LORD has warned you, “You must not go back that way again.” (17) And he shall not have many wives, lest his heart go astray; nor shall he amass silver and gold to excess. (18) When he is seated on his royal throne, he shall have a copy of this Teaching written for him on a scroll by the levitical priests. (19) Let it remain with him and let him read in it all his life, so that he may learn to revere the LORD his God, to observe faithfully every word of this Teaching as well as these laws. (20) Thus he will not act haughtily toward his fellows or deviate from the Instruction to the right or to the left, to the end that he and his descendants may reign long in the midst of Israel.