YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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YHE-HALAKHA: A WEEKLY SHIUR IN HALAKHIC TOPICS

God's Handiwork: Human Dignity as a Halakhic Factor (Part 2)

Based on a shiur by Rav Mosheh Lichtenstein 
Adapted by Myles Brody

THE HUMAN BODY AND THE DIVINE IMAGE

I would like to leave the laws of aveilut and move on to another area whose connection to our topic might be a bit more surprising.  I began our discussion with man's soul, if you will, speaking about kevod ha-beriyot as it pertains to aveilut and man's clothing.  Now I would like to return to Bava Kama and speak about the actual human body.  

The Torah describes the laws of chovel (compensation for causing another bodily harm) in two places.  In Parashat Mishpatim, the Torah presents the laws concerning compensation payments required of one who strikes his fellow.  For example, if the victim loses income due to physical disability caused by the assailant, the latter must compensate his lost wages.  The guilty party must also pay medical expenses (see Shemot 21:19).  In all, Chazal delineated five different payments to be made by the guilty party to the victim.  The Torah addresses these laws in Parashat Mishpatim, the parasha in the Torah that sets forth Jewish civil law.  The laws of chovel here are introduced as part of a much broader discussion of damage compensation.

However, the Torah returns to the topic of chovel a second time, towards the end of Parashat Emor (Vayikra 24), where it appears entirely out of context.  The first several parshiyot of Sefer Vayikra of course deal with sacrifices and the laws of purity and impurity.  The Sefer then turns its attention to the Yom Kippur service, and from there it proceeds to discuss the laws involving the sanctity of kohanim, the festivals, and Eretz Yisrael.  And in the midst of all of this, the Torah informs us once again of the laws of chovel. Surprisingly, the laws of assault and battery are discussed in Sefer Vayikra – the book that deals with the Mishkan and the general theme of sanctity!

Equally perplexing is the specific context within which the Torah inserted these laws, a context that has nothing at all to do with civil law.  In one of the only pieces of narrative in Sefer Vayikra, the Torah records the story of the "megadef," who publicly blasphemed the Almighty and was executed by the specific order of God (24:16).  After instructing Moshe to administer capital punishment to the offender, God proceeds to discuss the laws involving murder and assault (chovel).  The inclusion of these laws in Sefer Vayikra in general, and within the megadef narrative in particular, is at first hard to understand.  The story of the megadef itself appears in Sefer Vayikra because the general theme of kedusha (sanctity) involves as well the gravity of desecrating kedusha, as manifest in the megadef narrative.  But why does the Torah at this point suddenly bring us back to civil law - to Bava Kama and Seder Nezikin, amidst the discussion of the blasphemer?

It would appear that the Torah included the laws of chovel in Sefer Vayikra to teach that there is more to assault and battery than the compensation and reparations outlined in Parashat Mishpatim.  From one perspective, cases of assault involve a monetary drama of sorts between people.  On one level, a situation of a person striking another is but one instance of civil conflict, a case similar to a situation of an ox that hits a human being or falls into a pit.  In this same context we can speak of a car crashing into another car, or collisions between two human beings, or between two donkeys, and the consequential inability to work, loss of income, and so on.  But in addition, striking a human being involves something qualitatively different from damaged oxen, loss of income, or auto repairs.  The Torah relates to the striking of a human being as a strike at the tzelem E-lokim within him.  The gemara says (Sanhedrin 58b), "Whoever slaps a Jew in the face is considered as having slapped the Shekhina in the face."  By striking a human being, one strikes the divine image within him, the representation of the tzelem E-lokim.  This explains why the laws of chovel appear in Vayikra.  The megadef is out to deny the kedusha of Ha-Kadosh Barukh Hu by desecrating His name.  The same is true of a murderer, who desecrates the tzelem E-lokim within his victim.  This, too, constitutes blasphemy - not blasphemy of the divine Name, but blasphemy of the divine image within the human being.  For good reason, then, Sefer Vayikra includes the laws of murder and assault in the context of the blasphemer.

Let us now move from the biblical verses to sugyot in Bava Kama.  I will not embark here upon a detailed analysis of the various proofs and counter-proofs as to whether the chovel payment classifies as mamon (financial compensation) or kenas (punitive fine), if the purpose is to compensate the victim for his financial loss or to punish the perpetrator.  Rather, I would simply like to present a brief synopsis of the conclusions drawn by Rishonim and Acharonim from the relevant sugyot in the Gemara.  Three views exist among the medieval commentators regarding the nature of these payments.  One opinion, expressed by the Ri Megash (Shevuot, beginning of chapter 7), views all five payments as kenas.  They serve not as monetary compensation, but rather as a penalty against the guilty party.  By contrast, the Ra'avad considers all these payments mamon - monetary compensation.  The Rambam, representing a third view, distinguishes between the different payments.  In his view, the payments for medical expenses and lost income serve as monetary compensation, whereas the other payments - for bodily damages, pain and embarrassment – were established as punitive measures.  The Rambam's position is firmly grounded in the verses: the payments for medical costs and lost income appear together in the same verse (Shemot 21:19), whereas a separate verse deals with payment for damages and pain (21:24-25) and yet a third verse speaks of reparations for embarrassment (Devarim 25:12).  

Many Acharonim, such as Rav Chayim Brisker (on Hilkhot To'en ve-Nit'an) and Rav Gustman zt"l, argued that the payment for causing physical damage to a fellow human being is not compensatory.  No amount of money could possibly compensate for a lost limb.  Rav Chayim questions whether this payment is a form of kenas (penalty) or mamon (monetary), but he doesn't elaborate to identify the precise nature of this penalty.  The gemara refers to this payment as kofer (literally, "absolution"), but does not provide a specific definition.  The most explicit definition I found in the few Acharonim in whose works I searched (and I'm sure many others discuss the issue, as well) appears in the writings of Rav Velvel.  He explains that this payment stems not from the monetary loss, but rather constitutes a divine decree ("gezeirat ha-katuv") to pay according to the amount of damage caused, as a form of bounty or ransom that one pays to absolve himself.

In light of what we have discussed, I would suggest that we could describe this payment as a penalty for the affront committed against the divine image, rather than against the victim.  In other words, this penalty is meant to atone not for the injustice committed against one's fellow (bein adam la-chaveiro), but rather for the infringement upon God's honor (bein adam la-Makom). 

This issue may lie at the heart of a dispute in the Mishna in Bava Kama (end of 8th chapter, 90a-b) regarding payment for publicly humiliating another.  According to one view, the amount of payment would depend upon the victim's stature: a more dignified person would receive a higher compensation for his embarrassment, whereas somebody less concerned about his dignity would be granted a lower amount.  Rabbi Akiva, however, contends that the victim's stature does not affect the payment amount.  In determining the amount owed, we look upon even the most impoverished person as descending from noble stock.  Why?  Because they are all sons of Avraham, Yitzchak and Ya'akov.  Quite possibly, Rabbi Akiva here refers to the intrinsic kevod ha-beriyot within every person, the human dignity he possesses as a human being, which can never be lost.  Therefore, although the Tanna Kama is undoubtedly correct that a person can be indifferent regarding his own kavod, his own dignity, Rabbi Akiva argues that this has no bearing on his intrinsic dignity as a human being.  My impression is that many Rishonim do not necessarily agree with this approach, but it may very well be the underlying reason behind Rabbi Akiva's view. 

Admittedly, the evidence I have drawn from the laws governing chovel payments are not necessarily compelling. However, if we turn our attention away from the issue of payment and onto the actual prohibition (issur) of chovel, I believe we stand on much firmer ground.  Three proofs may be drawn to our theory from the discussions in the Gemara and Rishonim concerning the prohibition against causing physical damage to one's fellow.

The gemara (Sandhedrin 85) records a debate concerning liability for striking someone who is willfully (be-mezid) delinquent in his observance, to the point where he has removed himself from Am Yisrael by having shirked his duties as a Jew.  According to one opinion, a person does not violate the prohibition of chovel if he strikes a Jew who does not follow the lifestyle of Judaism ("eino oseh ma'aseh ammekha").  Why should the victim's level of observance bear any relevance to the prohibition against striking another person?  It seems to me that according to this startling opinion, the prohibition of chovel falls within the realm of mitzvot bein adam la-Makom (between man and God).  With regard to mitzvot bein la-chaveiro (man to man), a person's lack of mitzva observance would not impact his status.  From a monetary perspective, a person's lack of observance does not permit others to damage his property or refrain from compensating him if they do cause him damage.  If we speak of the victim anonymously, as Reuven, Shimon, or Levi, there is no reason to distinguish between the observant and the non-observant.  If, however, we speak of the prohibition in terms of tzelem E-lokim, that a person represents the Divine form within, and encapsulates the tzelem E-lokim in his being, then his behavior, lifestyle, and personality could, indeed, undermine this status.  When we cannot, unfortunately, view the victim as representing the tzelem E-lokim, the prohibition disappears.  In other words, if we define the prohibition as striking at the Almighty, then the victim must be considered a representative of God.  If his lifestyle does not represent God, then the prohibition does not apply.  

This is clearly not something I would have said on my own, and undoubtedly, the Mishna in Avot I quoted to begin the shiur assumes a basic tzelem E-lokim within every human being, regardless of his lifestyle.  Moreover, there is, of course, the other position in the gemara, that the victim's lifestyle has no bearing on the prohibition of chovel.  This position perhaps denies the possibility of losing one's tzelem E-lokim by conducting oneself in a certain way.  Or, this view might classify this prohibition under the category of bein adam la-chaveiro, focusing on the interpersonal element, rather than the divine element.  But in any event, it seems to me that the one who absolves a perpetrator from the prohibition if the victim is "eino oseh ma'aseh ammekha" clearly assumes that the victim's tzelem E-lokim constitutes the root of the prohibition.

The second halakha in this context involves the source of the prohibition.  The Rambam and Ramban argue in Sefer Ha-mitzvot whether the prohibition of striking one's parents is an independent prohibition or is included under the general prohibition against striking one's fellow.  In other words, they argue as to whether or not the prohibition of striking at a fellow Jew is the same as striking one's parents.  Clearly, if we consider this question from the perspective of interpersonal relations, bein adam la-chaveiro, the relationship between a child and a parent is an entirely different relationship from that between two strangers.  When we speak of a parent-child relationship, we are talking about the fact that parents are partners with God in creating a person.  Clearly, this relationship differs fundamentally from that between two random people.

If, however, we introduce the factor of tzelem E-lokim into the equation, then these two situations become much more closely related.  The gemara (Sanhedrin 50a) associates the mitzva of honoring one's parents with the requirement to give honor to God.  Honoring parents means showing honor to God by honoring our parents. Therefore, if we would look for some common denominator between the prohibition against striking one's fellow and that of striking parents, we would point not to the nature of these relationships, but rather to our relationship with God as manifested through our treatment of parents and fellow human beings.  Once more, Rambam and Ramban disagree about this, and I would suggest that the idea we discussed may lie at the heart of the issue.

Thirdly, the prohibition of chovel applies even to inflicting physical damage to oneself.  If we would view the issur strictly in terms of interpersonal relationships, presumably we should not forbid one from causing himself physical harm.  Nevertheless, the Rambam rules (Hilkhot Chovel U-mazik 5:1), following the gemara at the end of the eighth chapter of Bava Kama (93a), that a person who inflicts damage upon himself violates this prohibition, unequivocally equating this with striking somebody else.  If we speak of rules governing interpersonal relationships, this connection becomes problematic.  In light of this comparison, Rav Shlomo Yosef Zevin develops an entire theory in his book, "Le-or Ha-halakha," that a person's body is not his property.  One does not have the right to damage this property, so-to-speak, because it belongs to God.  The human body is merely a deposit a person receives temporarily from God, and Halakha thus forbids damaging it.

It seems to me, however, that, as we've discussed, the root of the prohibition is the tzelem E-lokim.  The payment, as noted above, may very well be monetary, or may be a penalty on the interpersonal level for the act of violence towards other people.  The prohibition, though, is directed first and foremost to the tzelem E-lokim, based upon the prohibition in Emor.  Therefore, even if a person's body belongs to him, he may not cause it harm because it represents the tzelem E-lokim.  In other words, the root of the matter is not ownership, but rather the divine image.  It may very well be that since a person's body contains the tzelem E-lokim, it is only a deposit.  But even if a person does enjoy ownership over his body, the fact that it serves as a representation of the tzelem E-lokim yields a prohibition against inflicting damage upon it.  Even if a person is prepared to endure the pain and suffer the damage, the prohibition remains in force, because the divine image is at stake.

In closing, I would like to mention one final halakha that perhaps relates to our theme.  The gemara in Bava Kama (91b) concludes the chapter dealing with physical damage to a human being, with a discussion of the prohibition of bal tashchit.  Without discussing the intricacies of the gemara's discussion, one can define bal tashchit as wanton loss.  But in a broader sense, just as we can talk about destroying the divine image in human beings, similarly, we can speak about the entire world as God's handiwork and creation.  The prohibition of bal tashchit, of defiling and defacing nature, may involve more than preserving the social order by not wasting resources that somebody else could use.  The universe belongs to God, and thus whoever harms nature for no good reason is held accountable for defacing God's world.  

I would now conclude with two sources which more explicitly relate to our theme.  First, the Torah forbids leaving a corpse unburied overnight for no good reason ("bal talin").  The source of this prohibition, according to the Mishna (Sanhedrin 46a), is the law in the Torah concerning sinners executed by the courts: "You shall not leave his body on the gallows, rather you shall surely bury him that day for a hanging person is a curse of God" (Devarim 21:23).  What is the reason for this prohibition?  It appears from the Mishna that this prohibition stems from the fear of a kind of causal chain.  Since Bet-Din hangs only those who worship idols or blaspheme God, people who see the sinner's remains will recall his act of desecration.  Publicizing this sin will thus serve only to amalgamate his cursing of God.  Therefore, to avoid spreading the word of his blasphemy, we must bury the sinner immediately.  The gemara, however, cites a beraita that views this halakha from an entirely different angle.  Rabbi Meir comments that if an executed criminal has an identical twin in that city, hanging the criminal would cause the twin humiliation.  Rashi explains that while the sinner's corpse is hanging, his "twin" - the divine image within him - suffers humiliation.  In other words, the divine image that dictated overturning the mourner's bed in Mo'ed Katan reappears here in Sanhedrin.  It arises there in the context of aveilut, and resurfaces here, in the context of burial.  Man and God are described here as "identical twins," and therefore, any humiliation of the human body in effect degrades the "twin" – i.e., God - as well.

Finally, I will conclude with the following gemara, which, in truth, I could have cited at the opening and thereby have rendered this whole discourse unnecessary.  The gemara (Shabbat 50b) remarks, "A person should wash his face, hands, and feet every day," in other words, treat his body properly, in order "to glorify God," as the verse states (Mishlei 16:4), "All that God creates is for His greater glory."  As Rashi explains, these simple actions dignify God, because man was created in God's image.  Moreover, when people see such fine creations, they will praise God for His world.  

I began the shiur by discussing the soul in Hilkhot Aveilut, but here we have ended by talking about the physical body.  We saw first how tzelem E-lokim impacts the law of chovel, and have now learned that the simple act of taking a shower is seen as maintenance of the tzelem E-lokim.  When a chovel defaces the body, he violates the tzelem E-lokim.  By contrast, a person who gives respect to his body and treats it properly dignifies God by showing honor and respect to the Divine Image within the human being.  

(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.)