God's Handiwork: Human Dignity as a Halakhic Factor (1)

Based on a shiur by Rav Mosheh Lichtenstein

Adapted by Myles Brody

 

 

MAN'S GREATNESS

 

We all know that tzelem E-lokim (divine form or divine image) is a major concept in Judaism's concept of man.  The Mishna says (Avot 3:14), "Beloved is man (chaviv adam), for he was created in the image of God; still greater was this love (chibba yetera) as it was made known to him."  God has a special affection, a "chibba yetera," for man because he is created in His image.  Moreover, the Torah treats humans uniquely and sees them as a major part of its message.  Ben Azzai, commenting on the verse, "This is the book of man" (Bereishit 5:1), famously asserts in the Midrash (Bereishit Rabba 24:7), "Ze kelal gadol ba-Torah."  It is a cardinal rule of Torah that the Torah is the book of man.

 

Therefore, I would like to examine certain halakhic expressions of man's greatness.  I could, alternatively, easily quote many sources from the world of philosophy to illustrate the unique position that man occupies within Judaism.  The gemara says (Sanhedrin 93a), "Gedolim tzaddikim yoter mi-malakhei ha-sharet" – the righteous, who are the ultimate achievement of human beings, are greater than the angels.  We could also talk about the Sages' assertion that each man is a world unto himself (Sanhedrin 37a).  However, what I would like to do is not to quote passages from aggadeta or various Jewish philosophers, but rather to discuss the halakhic manifestations of the concept of tzelem E-lokim. 

 

RETURNING LOST OBJECTS – HUMAN DIGNITY AND INDIVIDUAL DIGNITY

 

Let us begin with a question that Tosafot ask in Bava Metzia (30b).  The gemara states that if a person finds a lost item, the mitzva of hashavat aveida (returning lost objects) applies to him.  However, the finder is exempt from this mitzva if he is a "zaken ve-eino lefi kevodo," an elder for whom this would be undignified.  The exemption applies if returning the object will cause a certain loss of dignity to the finder, either because it is an undignified object (e.g. an intimate item), or because it would be degrading for him to walk around the street with it.  This exemption is learned from a particular phrase in the Torah ("ve-hit'alamta"), which dictates that you are allowed, at times, to look the other way.  Tosafot (s.v. ella) question why we need a special exemption for hashavat aveida in undignified cases, since we find in Berakhot (19-20) a broader and more general principle of "kevod ha-beriyyot docheh lo ta'aseh she-ba-Torah," i.e., various halakhot are voided in order to preserve human dignity.

 

One example in Berakhot of this latter principle is the following: if a person is wearing a garment with sha'atnez in it, we don't tell him (under certain circumstances) to remove the garment.  He can continue wearing the garment, rather than removing it immediately.  As such, Tosafot question why the gemara requires a special verse to derive this restriction on the mitzva of hashavat aveida.  Why do we need a specific exemption, when we have the general principle of "kevod ha-beriyyot"?

 

Tosafot answer that there are two quantitative levels of dignity.  The regular rule of "kevod ha-beriyyot" applies to a case of "genut u-vizzayon gadol," great shame and disgrace.  It is quantitatively more shameful to walk around naked than it is to take an undignified object and return it.  For this latter case, we therefore need the special limitation to the mitzva of hashavat aveida.

 

However, it would seem to me that the two gemarot are talking about two qualitatively different forms of dignity.  There is one form of dignity which applies to man as man.  It resides in every person because he or she is a human being, a representative of the human race, in which every individual possesses the tzelem.  Then there is another form of dignity which represents one's personal kavod as a specific individual.  This relates to an individual's unique characteristics and traits. 

 

When a person carries an object that he doesn't like being seen with, this does not affect the general dignity of man qua man.  That's the dignity of Reuven, Shimon, Sara and Leah.  We would not normally nullify mitzvot because of that, and do so in hashavat aveida only because the verse limits its scope.  However, when the mitzva infringes upon the actual dignity of the human being - the divine image, the tzelem E-lokim, within every human being - then we can apply a much broader, universal exemption, which is not limited to hashavat aveida. 

 

As such, the gemarot in Bava Metzia and Berakhot are talking about two different issues.  The gemara in Berakhot is talking about where the person invests himself with the tzelem E-lokim, the dignity of clothing, without which he defiles the actual tzelem E-lokim within him.  The gemara in Bava Metzia talks about one's private and subjective dignity, and this is a totally different issue.  As such, there is not only a quantitative difference, but also a qualitative difference.

 

MOURNING THE UNIQUENESS OF EACH PERSON

 

Having said this, I would like to move on to a few other instances in which we can see the concept of tzelem E-lokim manifesting itself as a halakhic factor in terms of how we treat human beings.  I will start from the more obvious cases, and then move on to the less intuitive areas.

 

The first case comes from the laws of aveilut (mourning).  In aveilut, we mourn the loss of a person.  Rashi says (Sukka 25a s.v. tirda) that the mitzva of aveilut is not to be excessively upset (tza'ar meito), but rather to give honor (kavod) to the deceased.  Rashi seems to indicate, and we accept in normative terms, that aveilut is not generic.  Rather, we have to give the deceased his due respect, based upon how he lived his life - his achievements, his personality, and so forth. 

 

The Ramban, however, in his Torat Ha-adam, seems to adopt the position that Rashi explicitly rejects.  He asserts that aveilut is a function of tza'ar (pain) and not of kavod.  Aveilut, in other words, is aninut she-ba-lev, emotional suffering.  This leads to different responses in cases where a person is not actually feeling broken.  For instance, the Ramban states that in cases of nefalim (stillbirths), a person, while grieving, isn't as upset as in the case of an actual human being who dies.  So while Rashi talks about respect to the actual individual, the Ramban talks more about sorrow. 

 

In both views, however, the focus is on the individual, the actual person who departed from us.  Those who believe that aveilut is a mitzva from the Torah derive this mitzva from aninut, which, as the Mishna tells us (Sanhedrin 46b), applies to aninut she-ba-lev, the sorrow that a person experiences when he loses a beloved one.

 

RAMBAM: MOURNING THE DEFEAT OF HUMANITY

 

The Rambam, however, adopted a entirely different approach to aveilut.  The Rambam states that the biblical source for aveilut is not aninut, but rather the obligation for a kohen to become impure for a deceased relative.  When a kohen's relative dies, the kohen has a mitzva to defile his kehuna, to actually force himself to become impure for his relative.  He is not allowed to remain above the death event, but is rather forced to confront death.  From this, the Rambam extrapolates the idea of aveilut, not only regarding kohanim, but regarding all Jews, as well. 

 

The Rambam emphasizes that the idea of aveilut is connected to the idea of tum'a (impurity).  A kohen has to go touch the corpse, to interact with the deceased, because we defile his kedusha (sanctity), the kedusha within him.  That is part of the aveilut.  However, if a person is not a kohen, then there is no prohibition of tum'a and therefore there is no mitzva to become impure (Hilkhot Avel 2:6).  In other words, the tum'a is not a function or expression of sorrow, but rather a mitzva to defile the actual kedusha.

 

How does this action translate into aveilut?  It seems to me that in using this source, the Rambam is not emphasizing one's individual connection to the deceased.  If this were the case, we would not see a unique concept of aveilut pertaining to a kohen.  Rather, the Rambam is expressing the fact that in aveilut, we are mourning not only the loss of a particular person, but also the loss of man as man.  In the same way, le-havdil, that we celebrate with sheva berakhot not only the individual wedding but also the creative capacity of man at large, so, too, death is the defeat of man, the defeat of all humankind.  Being human is to experience death and defeat.  Therefore, aveilut relates not only to the individual, but also to the divine image, to the tzelem E-lokim within the person, which has been defeated.  Therefore, the kohen, who has the highest level of sanctity within a human being, who represents the climax of tzelem E-lokim in man, must defile his kedushat kehuna, to express the defeat of man via the loss of holiness within him.

 

There are additional halakhic expressions of this theme.  Bar Kappara (Mo'ed Katan 15a-b) asserts that a mourner has to overturn his bed ("kefiat ha-mitta").  Why?  Because God says, "I have set the likeness of My image (demut deyukni) on them, and through their sins they have upset it.  Therefore, let your couches be overturned."  Rashi (s.v. demut) explains that God created man with tzelem E-lokim, and now He has to overturn, i.e. defeat, His tzelem E-lokim within man, because of man's sin.  The bed is a symbol of creativity and propagation.  With his tzelem E-lokim, man approximates God's creative capacity, by creating future generations.  The overturning of the bed, therefore, is the defeat of man's ability to propagate himself, to be creative.  Death is the antithesis to birth.  In aveilut, therefore, we mourn not only Reuven's loss, or Shimon's loss, but also the loss of "demut deyukni."  "I have implanted within you My tzelem E-lokim," God asserts, "and now this has been defeated with death."  Rav Soloveitchik, by the way, was of the opinion that the custom to cover mirrors makes the same statement.  In aveilut, we mourn the loss of the human-divine image, and therefore we must conceal it and overturn the place where it was recreated.

 

TWO CATEGORIES OF MOURNING LAWS

 

Rav Chayim Brisker noted that the Rambam seems to differentiate between two categories of the laws of mourning.  The Rambam begins the fifth chapter of Hilkhot Aveilut with the following statement: "These are the things that a mourner is prohibited from doing by the Torah on the first day of mourning, and on the other days of mourning they are prohibited rabbinically."  Then comes a list of prohibitions: cutting his hair, washing his clothes, bathing, etc. - eleven practices in total.

 

However, the Rambam omits from this list a number of laws, which he mentions at the end of the previous chapter.  In 4:9, he writes that a mourner, on the first day, may not put on tefillin or eat his own food, and must sit on an overturned bed.  He adds, however, that this is permitted on the rest of the days, the other six days, of aveilut.  And then the Rambam quotes the sources for this ruling. 

 

The Rambam clearly distinguishes between those halakhot appearing in chapter four and those in chapter five.  Rav Chayim (as quoted by Rav Velvel, and I heard it from the Rav, as well) explains that the Rambam saw the activities of chapter four as the kiyyum aveilut, the positive fulfillment of the mitzva of aveilut.  Those listed in the subsequent chapter, on the other hand, are the negative prohibitions upon a mourner.  The three activities listed in chapter four constitute the formal manifestation of the positive commandment to mourn.

 

I am not sure whether my formulation, which I will state in a moment, corresponds to this explanation or is an alternative.  Either way, it seems to me that this division in the Rambam corresponds to our distinction.  The halakhot mentioned in chapter four deal with the tzelem E-lokim, while those in chapter five deal with the individual loss.  Prohibitions of taking a haircut, bathing, marital relations, and so on, relate to the private, individual loss.  These relate to the mourner's private behavior, how a mourner comports himself as an individual.  In chapter four, on the other hand, the Rambam is discussing the laws that stem from the fact that a tzelem E-lokim has been defeated.  The tefillin, for example, are the crown jewel ("pe'er") of a human being, the crown which the Almighty gave him to express the connection between man and God.  The essence of our sanctity is in the tefillin.         Man is holiest, he has his most direct encounter with the divine, when he is wearing his tefillin, and this is the majesty of man.  In other words, the glory of man is his tefillin, because in that state he is close to God, he is most expressive of belonging to God.  The same way that the kohen's headplate, the tzitz, reads "Kodesh la-Shem" ("Sanctified to the Lord," in other words, I belong to God), so, too, the tefillin proclaim this for each and every one of us.

 

The same explanation holds true of the law that a mourner cannot eat his own food on his first day of mourning, a seemingly perplexing halakha.  Food consumption differentiates man from the beast.  Man provides for himself and cultivates and prepares his own food, while an animal roams the fields and jungles and eats whatever he finds.  The defeat of human dignity is partially expressed in the inability of a person to provide for himself.  Therefore, he must eat food from wherever he gets it.  The third example, overturning the bed, was previously discussed.

 

As such, the Rambam singles out in chapter four three manifestations of mourning - overturning the bed, not eating from other people's food, and not wearing tefillin - since they mourn the loss of human dignity.  They are distinct from the other eleven mentioned in the subsequent chapter, which relate to personal sorrow. 

 

This would also explain why in the Rambam's view, these three mitzvot apply only on the first day, and not seven days.  Rav Velvel suggested at the end of his discussion that the first day is indeed not crucial for these observances.  If a person does not perform these mitzvot on the first day, he may do so anytime during the seven.  However, in light of what we just stated, it seems to me that the first day is indeed indispensable for the fulfillment of aveilut, because it marks the actual encounter with the moment of death.  The moment of death, as we will see, is the point of defeat.  Therefore, on day one, the mourner is in direct contact with death.  Subsequently, he distances himself from the event.  The feeling, the emotion, remains even beyond the first day, and one must therefore observe aveilut for seven days.  But since this emotion begins to fade after the first day, the mitzva de-orayta applies only on the first day.  The point of contact with the actual death occurs only the first day.  Therefore, those responses to death which deal only with the loss of the tzelem E-lokim, and not with the inner feelings of sorrow or the need to pay respect to the deceased, can take place only on the first day.  As such, it seems to me that, unlike Rav Velvel's claim, a mourner cannot fulfill the three first-day obligations of aveilut beyond the first day.

 

While until now we have dealt with the Rambam, I think a similar idea is found in the Ramban, even if its practical expression differs somewhat.  The Ramban asks why Halakha does not require kefiyyat ha-mitta on Tisha Be-Av.  This issue is  actually subject to a debate between the tanna'im; we follow the position that the obligation of kefiyyat ha-mitta applies only to a mourner.  The Ramban explains that certain positive mitzvot of mourning relate only to death.  He cites the examples of overturning the bed and covering one's face (atifat ha-rosh).  Kefiyyat ha-mitta, if my interpretation is correct, has nothing to do with Tish'a Be-Av.  On Tish'a Be-Av we mourn the loss of the Mikdash, not the loss of a tzelem E-lokim.  Needless to say, there is no connection between the loss of man's creative capacity and the loss of the Temple.  As such, kefiyyat ha-mitta would have no meaning within the framework of Tish'a Be-Av.  Therefore, the majority position maintains that overturning the bed serves no purpose on Tish'a Be-Av.  The Ramban makes the same point regarding atifat ha-rosh.  The halakha of atifat ha-rosh, which is not practiced today, requires a mourner to cover his face, or his head, as if wearing a headdress.  This practice reflects the same idea.  The head, more than anything else, is symbolic of human dignity.  Kabbalists even go so far as to speak of the face as being divinely encoded, so to speak.  Certainly, if we think about the tzelem E-lokim, it is the head, more than anything else, where it is lodged.  Therefore, atifat ha-rosh represents not only the defeat of the personality, but also the defeat of humanity.  As such, for the Ramban, the obligations of kefiyyat ha-mitta and atifat ha-rosh relate only to death, and have no relevance to the loss of the Mikdash.

 

CLOTHING AND DIGNITY

 

This brings us to yet another halakha within the sphere of aveilut.  The gemara (Mo'ed Katan 26b) distinguishes between mourning and the requirement of tearing one's clothes (keri'a), establishing these two mitzvot as two separate concepts.  Keri'a encompasses a wide array of halakhot associated with, shall we say, the "silluk Shekhina," the departure of the Divine Presence from us or from the world.  For example, one must perform keri'a when he witnesses the burning of a Sefer Torah.  If somebody blasphemes God, Heaven forbid, there is an obligation for all listeners to rend their garments.  Keri'a similarly applies to beholding the ruins of Judean cities, Yerushalayim or the site of the Temple.  In addition, one must also perform keri'a if he is present at the moment when any human being, not only his relative, passes on.  This keri'a has nothing to do with one's personal relationship with the deceased.  It is a keri'a not for the individual, but rather for the tzelem E-lokim which has departed.  All these situations involve the Shekhina's departure from this world, be it in departure from the Mikdash, a Sefer Torah, the Divine name, or the human being.  Just as we see the Shekhina leaving and ascending from our world with the burning of the Mikdash or a Sefer Torah, so do we view death as the loss of the divine image.

 

Let us elaborate for a moment on this point.  Chazal treated clothing as a basic manifestation of human dignity.  The difference between man and animal is his clothing.  The first man was clothed by God.  In the world following Adam's sin, in the world in which disharmony exists between nature and man, clothing is what sets man aside from nature.  The difference between the brute and the human being is his clothing.  If somebody wants to humiliate another and strip him of his human dignity, he throws him back into his natural state by removing his clothing.  Man is returned to nature when his clothing is removed and he finds himself once again at the mercy of the elements.  Conversely, when someone seeks to dignify and embolden another person, he removes him from nature, clothes him and shelters him.  This is what being human is all about. 

 

In fact, the gemara in Bava Kama (91b) goes so far as to suggest that the prohibition against unnecessarily destroying objects (bal tashchit) might only apply to one's clothing, but not to one's body.  The gemara offers two explanations for this possibility.  Firstly, a person's flesh is practically more expendable: torn flesh heals by itself, whereas torn garments must be discarded.  According to this explanation, the practical effect of damage to clothing exceeds that of bodily harm.  But then the gemara adds a second explanation, recording that several Amoraim would refer to their clothing as "manei mekhabduta" - my clothing is my dignity.  In other words, clothing symbolizes human dignity. 

 

As such, we have all kinds of halakhot relating to clothing.  For example, the gemara (Sanhedrin 83b, Zevachim 17b) asserts with regard to the uniform of the kohanim, "bi-zman she-bigdehem aleihem, kehunatam aleihem" – whenever they wear their priestly garments, they possess the status of kohanim.  The kohen's vestments actually affect his personal status.  Kevod Shabbat is similarly expressed by wearing special clothing.  One could elaborate at much greater length on the significance of clothing (and at my aufruf my father actually did).  But in any event, keri'a clearly expresses the loss of human dignity and man's unique place within nature.  Therefore, in all the situations mentioned above, one must tear his clothing to expose oneself once more and to show that beneath his clothing, man has been defeated. 

 

This shiur will be continued next week.

 

 

(This shiur was delivered at a yom iyun in honor of Harav Aharon Lichtenstein, on the occasion of his thirtieth year as Rosh Yeshiva of Yeshivat Har Etzion.  This adaptation was not reviewed by Rav Mosheh Lichtenstein.)