Kavod Habriot

Because the ability of kavod habriot to override a rabbinic decree - or at the very least compel a lenient reading of said decree - is an important part of Dr. Sperber's article, I thought I would bring in some background on the issue. I am basing myself off of "The Talmudic Argument" by Louis Jacobs, chapter 12 'Gadol Kavod Habriot: the law and regard for human dignity", pgs. 115-121, Cambridge University Press, 1984.

Brakhot, 19a-20b. 1. Rav Judah in the name of Rav: One who realizes he is wearing kilayim (Torah-forbidden mixture) must strip, even in the marketplace. B. Contradiction: According to a baraita, if a mourner follows an impure road, the accompanying party must continue to accompany him. Even kohanim must continue to follow him, despite the fact that this will cause them to violate the Biblical injunction against coming into contact with cemeteries (Leviticus 21:1. The reason for this is kavod habriot - human dignity. Presumably, in case A, since it would violate the person's human dignity to strip, human dignity should trump the Biblical injunction in that case as well. C. Resolution: The baraita is talking about beit hapras, the case of a path rabinically forbidden to kohanim, but allowed to them by the Torah. Thus, kavod habriot can trump rabbinic law, as it does in B, but can not trump Torah law, which is what's at stake in case A. D. A statement is brought from a baraita: "Great is kavod habriot for it pushes aside a negative precept of the Torah". E. This statement is explained as follows: The only negative precept that is pushed aside is that of "Do not turn aside" (Deutoronomy 17:11), which is the precept to not disobey the rabbis - ie, effectively, only negative rabbinic injunctions may be disobeyed on the grounds of human dignity. F. A Nazirite may contaminate himself to bury an unclaimed corpse in need of a burial, due to the human dignity of the deceased. A person may delay sacrificing the Paschal lamb or circumcising his son to bury the unclaimed corpse in need of a burial, for the same reason. All three instances (Nazirite contamination, delaying Paschal lamb, delaying circumcision) involve Torah commandments. G. The cases in F are different than case A: The cases in F allow one to refrain from doing a positive Torah commandment because of human dignity, but that does not mean one has permission to actively violate a negative Torah commandment for human dignity.

Dr. Jacobs sums up as follows: "An indirect offense, even if it is Biblical, and a Rabbinic offense, even if it is direct, may be set aside in order to safeguard human dignity." (119)

Aramaic version of daf available here: http://www.e-daf.com/index.asp