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28.01.2019 17:33    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  parashah  shemot  mishapatim  

Shaming and Jewish Law

Our age has been blessed with numerous technological innovations, of which the internet, especially social networks, is one of the more prominent.  This advance brings with it great tidings but also many dangers.  Shaming people on the internet is one of the great ills that afflict a person in his very soul, not just his body.  This affliction stems from the absence of love for one’s fellow human being and from the absence of methods of legal enforcement.

Just as safeguarding a person’s dignity is a challenge of the utmost importance, for humans were created in the image of G‑d—so important that the Talmud states, “Great is human dignity, since it overrides a negative precept of the Torah,”[1]—so, too, shaming a person is a more grievous transgression that hurting someone bodily.

The Talmud, Tractate Sanhedrin, says, “He who smites an Israelite on the jaw, is as though he had thus assaulted the Divine Presence,”[2] and Rabbi Abraham Hayyim Shor[3] explains in his book, Torat Hayyim:

The Sages were more strict about humiliating another person, more so than about dealing a blow, for they did not say that a person who raises his hand and strikes his fellow is as though he had raised his hand against the Divine Presence…Since a person who intends to deal his fellow an injurious blow causes the other person pain to his body, but…when a person intends to humiliate another, the pain reaches into the soul of the other, which is derived from the Divine Presence.[4]

It is said of the person who embarrasses his fellow in public that it is “as if he shed his blood.”[5] The President of the Israeli Supreme Court, Justice Moshe Landau, z”l, based his remarks on this saying when he ruled:

What is at stake here is the citizen’s freedom as opposed to his right, that is to say, his freedom to say what he wishes and to hear what others wish to say, as opposed to his right not to have his honor and good name impugned.  If there is indeed any place for grading the two vis-à-vis each other, I would place the right above the freedom.  This places the right to a good name on the same level as the right to life, as our forebears said, “He who publicly shames his neighbor is as though he shed blood.”[6]

Back in the 13th century Rabbenu Jonah Gerondi wrote that the sin of defaming “is greater than seeking to put an end to someone’s life, for the pain of disgrace is more bitter than death.”[7]

Indeed, the Talmud states that “where the insult was merely in words, there would be exemption from any liability whatsoever,”[8] which might imply that the one who causes injury does not have to pay for “degradation” (one of five types of payments that the party who injures another must pay).[9] However, Rabbi Joseph Saul Nathanson, Rabbi of Lvov,[10] interpreted the words of the Talmud as not applying to someone who shames the soul of another person, in which case he surely must compensate the injured party, for the reason that the “degradation reaches the very soul, which is surely worse than injury to one’s body; that being so, clearly he must pay compensation even if he did nothing to the person bodily.”[11] On these grounds Rabbi Joseph Saul Nathanson ruled that someone who caused humiliation by calling off an engagement had to compensate the injured party.

Now let us move on from Torts to Penal Law.  It might appear that someone who shames should not be punished, for there is no “action” done in shaming and thus it falls into the category of “a negative precept that does not involve action”—something which does not incur punishment.  But this is not how Rabbi Eliezer b. Nathan (Ra’aven), a 12th-century tosafist, viewed the matter.  The case brought before him concerned “Reuben, who accused Simeon of ‘wronging him by words,’ and brought witnesses that he had wronged him.”  The Rabbi responded:

This case is ruled by our Mishnah:  “Just as there is wronging in buying and selling, so, too, there is wronging with words,” as the Rabbis taught:  You shall not wrong one another (Lev. 25:17)—Scripture speaks of wronging with words, for restoration can be made for wronging by money…”  Therefore, he is to be flogged, for he transgressed a flat prohibition.[12]

The stipulation that a man who “makes an evil report” [falsely charging that his newly wed wife had no tokens of virginity] must pay a fine of 100 selas, while the man who violates a woman must pay only 50 selas, leads the Mishnah to conclude:  “Thus we find that he who speaks with his mouth is held to account more than he who commits an act.”[13]

In our day, when the judges of the Rabbinical court do not have jurisdiction in all legal matters, including not in cases of damages (since in this regard one cannot say that the dayyanim act by virtue of the charged placed on them by the dayyanim of yore), Rav Kook asserted that the dayyanim of our times must have recourse to the original law before the Torah was given, which forbade causing injury to others and stipulated that one who causes injury must be punished.[14]

What is more, not only according to established law is the person who shames culpable; but also according to a Takkanah (regulation) established over a thousand years ago by Rav Sherira Gaon, one who shames another person is to be ostracized, for the reason that “words can shame more than physical injury, for nothing measures up to the evil tongue or slander of one person against another.”[15]

The failing of the legal system in Israel finds expression in the majority decision of the Supreme Court that there is no legal cause for requiring an internet provider to disclose the identity of surfers who have committed a wrong.  Justice Elyakim Rubenstein, however, came out with a minority opinion that one should learn from the sources of Jewish law and the innovative rulings of the Rabbis that found cause for action against wrongdoers, in order to prevent the chaos that would result from the possibility of wrongdoing that is not subject to the threat of a civil suit, without which it appears “people would eat each other alive.”[16]

Lastly, there are indeed situations in which it is obligatory to disseminate things that involve shaming.  Such is the case when the shaming is part of the punishment established by a legal verdict, and such is the case when the person doing the shaming is obliged to publicize something about a certain person in order to save others from that person, and such is the case when doing this is necessary in order to force a criminal to cease and desist from his wicked actions.  We have been witness of late to rabbinic courts publicizing the names of men who, in contravention to the court’s ruling, have refused to give their wife a writ of divorce, and thus causing them to be shamed.

The decision to shame, however, must not come as an act of revenge by the shamer, or out of glee at someone else’s misfortune.  Rather, it must be the result of weighty consideration by an authorized body, fit to rule in cases of life and death, according to the criteria of the duty to publicize in cases of slander.

The more we train ourselves to love our fellows and the more we adopt the criteria of Jewish law, both with respect to instances in which shaming is permissible and with respect to ways of enforcement against violators, as Jewish law had the wisdom to advance, the better the quality of life will be in our society.

Translated by Rachel Rowen

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