The Death Penalty?: Bava Kamma 86

By: Rabbi Jay Kelman |

Rav Yaakov Ettlinger in his collection of responsa (Binyan Tzion #172) discusses the powerful and scary question of whether one has to give up one’s life rather than embarrass somebody in public[1]. If so, “whitening someone’s face” would join adultery, idolatry and murder as one of the cardinal sins of Judaism.

A simple reading of the Gemara would indicate this to be so. “It is better to be thrown into a fiery furnace and not whiten the face of a friend in public.” (Bava Metzia 59a) While many have argued that such is an aggadic teaching of moral but not legal consequence others have understood it literally. Such an approach can find possible justification from the legal discussion regarding the payment of boshet, the fifth category of damages imposed for assaulting another.

Unlike nezek, where one must pay for actual damages caused irrespective of intent – even one who causes damage in his sleep is liable – the fine for boshet, embarrassing another is only paid if done intentionally. One who manages to embarrass another while sleeping, perhaps through giving him a black eye, would be exempt from payment. What is most interesting is the source of this legal ruling.” Embarrassing another is like murder. Just as by murder one is liable [for the death penalty] only for intentional murder as the verse says ‘But if any man hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die’ (Devarim 19:11) until he has intent, so too embarrassment until he has intent as it says ‘and put forth her hand, and take him by the secrets’ (Devarim 25:11) until there is intent to embarrasses him.” (Bava Kamma 86a)

Embarrassment need not be immediate. One can be greatly embarrassed when told about an event that happened earlier. The Gemara notes that embarrassing a young child, one who is too young to even understand that he has been embarrassed may still be an actionable offence. Years later when he finds out what happened that will be most painful. The Gemara even queries if one must pay for embarrassing one who never finds out – and never will find out that he has been shamed. This would be the case, the Gemara explains, in a case of one who embarrassed someone who was sleeping and the sleeping person then died in his sleep. Whether or not one is liable would depend on whether the shame is that of the deceased (and there would be no liability) or the shame is that of the family and thus, they can demand compensation.

That one can claim payment for a “tort” done to another is a most interesting and I dare say unusual claim in Jewish law. Normally unless one is the direct object of the tort one is precluded from bringing a suit. Yet shame is different as the embarrassment suffered by a family member shames all in the family. We have a similar question regarding whether one may exempt one’s children from the laws of mourning. Are the rites of mourning primarily to honour the deceased in which case he can waive the honour due him or does is the observance of shiva for the benefit of the mourners such that the deceased cannot waive them?

A third link between embarrassment and death can be seen in Rabbi Yehuda’s view that a “blind person need not pay boshet and Rabbi Yehuda used to say ‘a blind person is exempt from all mitzvoth in the Torah[2].” (Bava Kamma 86b) If as Rabbi Yehuda claims a blind person is exempt from all Torah obligations there is little reason for a specific exemption of boshet for a blind person. That too is included in “all the mitzvoth of the Torah”. Apparently Rabbi Yehuda wants to specifically link boshet to those exempted from all mitzvoth. And such a list is a short one and most specifically is said in reference to the dead “who are free from all mitzvot.[3]” In other words the specific mention of embarrassment as a prelude to exemption from all mitzvot serves to link shame to death.  

[1] He rules that in fact one must give up one’s life! rather than embarrass an adult but one may embarrass a child in order to save one’s life. For a detailed discussion of this prohibtion – including dissenting views – see Rabbi Daniel Feldman The Right and the Good (2005) pages 1-29.

 

[2] This is quite a radical view and the Gemara offers no explanation as to why this may be so. Perhaps it is because being blind – especially in the ancient world – put one constantly in a position of pikuch nefesh, of risk to life and limb. The blind had to focus on staying alive and hence Rabbi Yehuda felt obligating him in mitzvot would be too difficult and dangerous. Rabbi Yehuda’s view was not accepted – exemptions could be done on a case by case basis.

So fundamental are mitzvoth that the Tosafists, despite having no source, argue that even Rabbi Yehuda would agree that the blind is obligated in mitzvoth on a rabbinic level (they would obviously not agree that the reason for the biblical exemption is based on pikuach nefesh) because otherwise he would be just like a non-Jew. Others argue that Rabbi Yehuda’s exemption was only for positive mitzvoth but not negative mitzvoth. While he was not obligated to go to shul and daven he could not eat non-kosher food. Whatever the exact details of his view, it has been rejected.

 

[3] Most interestingly the Binyan Tzion # 170-171– in the two teshuvot immediately preceding his responsa on embarrassing others – rules based on this principle that a person can give permission to have his body mutilated after death as the dead are free of mitzvoth. However if he does not give permission the family cannot agree to donate organs from the deceased even in a case of pikuach nefesh as the deceased has no obligation to save others. Both of these responsa are rejected by many others.