Simon Jackson
Legal Advisor to Torah Mitzion
Drugs have been smuggled into prison by prisoners for personal use and as a means of acquiring influence and status. The drugs are then swallowed by the prisoners.
May the prison authorities administer an enema to prisoners in order to discover the swallowed drugs? Or will considerations of human dignity prohibit this?
In Israel, the universal right to human dignity entered the legislation as the “Basic Law: Human Dignity and Liberty” passed by the Knesset in 1992. The purpose of the Law is “to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state” (para. 1A). A Basic Law is a ‘meta-law’ in light of which all other laws and acts of any state body are governed. It thus guarantees that all persons are entitled to protection of their life, body and dignity; that all persons are free to leave Israel; that all persons have the right to privacy and to intimacy, and more.
One interesting case decided by the Israeli Supreme Court before the introduction of the 1992 Basic Law was the question posed overleaf. The proceedings turned on the question of whether the Prison Service and the Governor of Ramlah Prison could order the administration of an enema without the consent of the prisoners concerned in order to discover drugs which prisoners had swallowed. First, Deputy-President H.H. Cohn took pains to point out to his colleagues that Jewish law has much to say on the topic of human dignity:
My learned friend, Justice Barak, in his wisdom cited many impressive passages from English and American legal literature to show that in the view of the leading judges and legal philosophers of the gentile world as well, the safeguarding of a man’s honor is preferable to the satisfaction of the legitimate requirements of law and order. I have said to myself that we do not live by these authorities alone. Let me try to quarry from our own deep sources the sayings of our Sage to illuminate the matter…
He then proceeded to apply the provisions of Jewish Law to the case at hand:
A free and civilized society is distinguished from a barbaric and oppressive society by the degree to which it treats a human being as a human being…
The Sages prescribed the eminent principle: “Great is human dignity, since it overrides a negative commandment of the Torah” (Berakhot 19b). Rav bar Sheva explained that this ‘negative commandment’ refers to the specific commandment “not to deviate from the teachings of the Rabbis neither to the right nor to the left.” In other words, human dignity overrides all rabbinical commands which we are required to observe by virtue of the negative commandment not to turn aside. [A corpse that has begun to smell offensively may therefore be removed on the Shabbat from the place where it is lying on account of human dignity (Shabbat 94b). And although it is forbidden on the Sabbath to move the lightest of stones, especially from the one domain to another, it is permissible to carry them up to the roof, in order to clean oneself after doing one’s needs, on grounds of human dignity – see Shabbat 81a-b].
By contrast, the commandments of the Torah do not yield to human dignity. For example, if one sees a person dressed in a garment of a mixture of wool and linen, one must tear it from his body even in public, “and even if he was his teacher who taught him wisdom, since human dignity does not displace the prohibition of an express negative commandment of the Torah” (M.T. Kilayim 10:29).
This distinction between the Written Law – which does not yield to human dignity – and the Oral Law which does so yield affects the matter before us. If we “translate” the Written Law into legal terms as meaning primary legislation [Knesset enactments] and the decrees of the Sages as being secondary legislation [other directives, orders etc. made by virtue of the primary legislation], we may say that even human dignity cannot prevail over primary legislation, whereas secondary legislation must yield to human dignity.
An infraction of human dignity, by forcible penetration of the individual’s inner parts, would thus only be permissible under primary legislation. So long as it is not so permissible, however, such dignity is immune from any license to violate.
Justice Cohn proceeds to state that the analogy between the Written Law and primary legislation is untenable, because even primary legislation is a human act, variable and repealable at the wish of the Knesset, whereas the Written Law is eternal and immutable. In this respect, he argues that:
The Oral Law of the Rabbis is similar to the primary legislation of our own times. That may also suggest to the primary legislature [the Knesset] that just as the Rabbis were bold enough to waive all prohibitions instituted by them where necessary to preserve human dignity, it, too, should be cautious in sacrificing human dignity on the altar of any other requirement whatsoever.
Moreover, the halakhah that one must do everything to prevent another person from committing an act prohibited by the Written Law, even if his honor is affected, will only apply to a transgression manifest to all and where there is no doubt as to the identity of the offender… since it is equally forbidden to touch a person merely suspected of a wrong (Menachot 37b). That is the situation in the case before us, concludes Cohn:
Even were it permitted to prevent the commission of a wrongful act by removing drugs from the body of a person, when it is clearly and demonstrably known that the drugs are in his body, there is no authority to penetrate his body merely to search, to establish whether an offense has been committed or not. Human dignity thus remains supreme since it prevails over the prohibition of introducing drugs into prison.
Questions for further thought:
Do you agree with Justice Cohn’s equation between the laws of the Knesset and the Oral Law, such that effectively no law ought to override the ‘meta-principle’ of human dignity?
Should considerations of “human dignity” prevent the application of ‘necessary pressure’ by Israel’s General Security Services on the bodies of potentially ‘ticking bombs’?
