Q&A: Regarding human dignity overriding a Torah prohibition through passive non-action
Regarding human dignity overriding a Torah prohibition through passive non-action
Question
Hello Rabbi,
In Bava Metzia 30a it says:
“If one found a sack or a basket [or any item] that it is not his way to carry, he should not take it. From where are these words derived? As the Rabbis taught: ‘and you shall hide yourself’ — sometimes you may hide yourself, and sometimes you may not hide yourself. How so? If he was a priest and it was in a cemetery, or if he was an elderly person and it was beneath his dignity, or if his own work was worth more than that of his fellow — therefore it says: ‘and you shall hide yourself’ from them. Why is a verse needed? … For an elderly person, when it is not in keeping with his dignity.”
I wanted to ask: why do we need a verse to teach that an elderly person for whom this is beneath his dignity is exempt from returning a lost item? After all, he should be exempt even without the verse, based on the exemption of human dignity, which overrides even a Torah prohibition when it is a matter of passive non-action. I thought perhaps one could answer that in order to override a prohibition involving money, a separate source is needed, because it has a stricter side than an ordinary prohibition (one may not save oneself through another person’s property, whereas regarding a regular prohibition that is permitted), and also a more lenient side than an ordinary prohibition (we do not push aside a prohibition because of monetary concerns), and therefore one cannot make an a fortiori argument in either direction (from an ordinary prohibition to a monetary prohibition, or vice versa). What do you think?
Best regards,
Answer
I think that here there is also a positive commandment, not only a prohibition. Therefore, on the basis of human dignity, it is not obvious that one can derive this conclusion. And indeed, immediately afterward it says that if he struck it once, he is then obligated to return it. Before striking it, only a prohibition applies to him, and from that he is indeed exempt. After striking it, there is also a positive commandment to return it, and then he is obligated.
Incidentally, it may be that from here itself we learn the very principle of human dignity overriding things (as far as I recall, there is no other source for it). And in Tosafot beginning with “Rather, for an elderly person” there on 30b, it takes for granted that this is about human dignity, and it raises the issue of why both cases are needed, and distinguishes between several levels of human dignity (lifting the lost item is only a minor affront to dignity, so perhaps one cannot learn from there that it overrides the commandment and the prohibition). Look there in the commentators and you will find many discussions of this.
As for passive non-action in deference to human dignity, the Rosh and Maimonides disagree about it (the Noda B’Yehuda discusses this at length, and also Kovetz Shiurim in the pamphlet and Kehillot Yaakov): whether the meaning is that the prohibition is actually overridden, or that the two considerations are balanced and therefore we choose passive non-action. In our case, ignoring the lost item is an active violation, because the prohibition is against ignoring it. The positive commandment is to pick up the lost item, and if you do not pick it up, you violate that through passive non-action. But the prohibition is not to ignore it, and if you ignore it, that is active violation. This is like the commandment of rest on the Sabbath, which is apparently fulfilled through passive non-action, but essentially it is a state of rest that counts as an act. And likewise affliction on Yom Kippur. This definition is of course not universally accepted (that such a thing is called active violation), but it is possible. Put differently: the permission to transgress through passive non-action because of human dignity is permission to forgo a positive commandment, not to violate a prohibition (active violation and passive non-action are not measured by physical performance, but by the essence of the transgression). I wrote about this in my article on the Sixth Root.
As for your reasoning: the fact that another person’s property is being affected is true, and that is serious, but that very distinction also has a more lenient side. Granted, for the sake of the honor of Heaven I am obligated to forgo my own honor. But why should saving my fellow’s money take precedence over my own dignity? Is his blood redder than mine? Does bringing him a benefit justify harming my dignity? On the contrary: let him spend money to prevent harm to my dignity, and in that way effectively perform the commandment of returning a lost item himself.
Incidentally, the Ritva there wrote that this is because of the honor of the Torah, not human dignity. That implies that we are dealing with a situation in which ordinary human dignity would not override it (as I mentioned from Tosafot). But in most of the medieval authorities this does not seem to be the case.
Discussion on Answer
That is a difficult reading of Maimonides, because it goes against an explicit Talmudic passage. It seems to me more reasonable that he gave the reason that this is about money in order to teach that in such a case even a prohibition can be overridden through active violation (even though here there is no need for that, because this is passive non-action). The case of impurity is one of active violation.
Following up on this question, I was reminded of Maimonides, from whom it seems that not every Torah prohibition is overridden because of human dignity through passive non-action, but only a monetary prohibition and the prohibition of corpse-impurity. Seemingly, according to his view my question is answered differently:
Maimonides, Laws of Diverse Kinds 10:29:
“One who sees Torah-forbidden kilayim on another person, even if he is walking in the marketplace, jumps upon him and tears it off him immediately, even if he was his teacher who taught him wisdom, for human dignity does not override an explicit negative commandment in the Torah. And why is it overridden in the case of returning a lost item? Because it is a monetary prohibition. And why is it overridden in the case of corpse-impurity? Since Scripture made an exception with regard to ‘his sister’; by oral tradition they learned: for his sister he does not become impure, but he does become impure for a neglected corpse. But anything whose prohibition is of rabbinic origin is overridden because of human dignity everywhere. And although it is written in the Torah, ‘Do not turn aside from the matter,’ this prohibition is overridden because of human dignity. Therefore, if he was wearing rabbinically prohibited shaatnez, one does not tear it off him in the marketplace, and he does not remove it in the marketplace until he reaches his house; but if it was Torah-prohibited, he removes it immediately.”
It seems from Maimonides that he does not distinguish between active violation and passive non-action regarding being overridden because of human dignity. But I saw that some dispute Maimonides’ view and hold that every Torah prohibition is overridden because of human dignity in passive non-action. In the entry “human dignity” on Yeshiva Wiki it says this:
Overriding other commandments through passive non-action
Just as the commandments of the Passover offering and circumcision are overridden because of the honor of the dead, through passive non-action, so too the other commandments of the Torah are overridden because of human dignity through passive non-action (see Rashi, Berakhot 20a s.v. “sit”; Tosafot, Bava Metzia 30b s.v. “Rather”; Meiri and Chiddushei HaRan, Megillah 3b. And so too it appears from other medieval authorities on Berakhot and Megillah there, and from the plain wording of many medieval and later authorities; see further below), even when there is no commandment at all inherent in that honor because of which the commandment is overridden. For even in the case of a neglected corpse, it is not the commandment of burial that overrides the commandment of Passover; rather, human dignity — that the dead person should not lie in disgrace even for one hour — is what overrides it, since the commandment of burial does not have the power to override another commandment, for one positive commandment does not override another positive commandment (see the entry “a positive commandment overrides a prohibition”; responsa Sha’agat Aryeh, new responsa 12; Pri Yitzchak 1:26 near the end, s.v. “and even more so”).
And some hold, in the view of certain medieval authorities, that specifically the burial of a neglected corpse overrides other commandments, but other forms of human dignity do not override Torah commandments and prohibitions, even through passive non-action (see Maimonides, Laws of Diverse Kinds 10:29, who says that returning a lost item is overridden because of human dignity because it is a monetary prohibition, and does not mention that it is passive non-action; and see Tumim 28:12, responsa Ketav Sofer, Yoreh De’ah end of sec. 160, and Sdei Chemed, system gimmel, letter kaf, citing Mikneh Avraham in his view).