This week’s parsha includes an interesting vignette:
As with many halachot, this is archetype for a class of tort, known as בושת: I am financially liable for causing embarassment to another.
I will not deal with why we understand וקצתה את כפה as a monetary fine (many pixels have been darkened over this, why the halacha of עין תחת עין is about money and not corporal punishment).
There are five aspects of interpersonal torts:
Four of them are derived from psukim in פרשת משפטים:
The question I want to look at is, why is בושת here, in ספר דברים, and not with the other laws of torts in פרשת משפטים? I will assume that the laws were given as part of מעמד הר סיני, and that ספר דברים deals with the laws that are specifically relevant to the generation that would enter the land, and that “new” laws were part of the תורה שבעל פה before that.
What is בושת doing in this ספר? The Sforno connects it to the previous paragraph:
Shame is a powerful weapon that can be used as a tool by בית דין when necessary but is actually (and legally punishable) damaging when used against a fellow citizen. Baruch Kehat connects it to the paragraph before this:
Even בית דין can only use בושת in specific situations sanctioned by the halacha.
And the law of flogging is connected to our paragraph by a specific term:
The message is that בושה is connected to יחדיו, being together. Embarrassment is a social construct. You can’t be embarrassed without an audience. It is different from נזק, צער, רפוי and שבת. Those injuries to the individual. בושת is an injury to how we present ourselves to others.
And that explains why בושת is such a terrible crime:
Rav Hutner is bothered by this. Why is בושה worse than צער? Why don’t we say “sticks and stones may break my bones, but words will never hurt me”?
המלבין פני חבירו ברבים is compared to שפיכות דמים specifically, which is a reference not to killing but to destroying the צלם אלקים of a person:
Goffman is wrong. Our public persona is not mask that we wear outside, removing it when we are alone, “where people can be themselves and drop their societal roles and identities”. Human beings are social animals. The way we interact with others is who we really are. The tort of בושת strikes at our very identity.
So that gets back to what this mitzvah is doing in our sefer. As Rashi said, ממון דמי בשתו, הכל לפי המביש והמתביש. The cost of בושה depends on what society considers normal and what it considers embarrassing. You can’t assign a value to that tort until you know what kind of society you live in. The goal of the Torah is to create a society in which everyone can be a victim of בושת, because everyone has an identity and has their own dignity. It doesn’t depend on money or accidents of birth.
And that is what the בנים נוחלי הארץ needed to hear.