Disability in Jewish Law

D IS A BI L I T Y I N J E W ISH LAW

In recent decades, record numbers of Jews are taking a newfound interest in their legal heritage – the Bible and the Talmud, the law codes and the rabbinical responsa literature. In the course of this encounter, they may be interested in how these sources relate to the issue of disability, and the degree to which halakhic attitudes to disability are in harmony with contemporary sensibilities. For example, can the blind, or those in wheelchairs, serve as prayer leaders? Need the mentally incompetent observe any ritual law? Is institutionalization in a specialeducation facility where Jewish dietary laws are not observed permitted if it will enhance a child’s functioning? And how are we to interpret teachings that seem inconsonant with current sensibilities? Disability in Jewish Law answers the pressing need for insight into the position of Jewish law with respect to the rights and status of those with mental and physical impairments, and the corresponding duties of the non-disabled. Disability in Jewish Law is neither an exercise in apologetics for the tradition, nor an attempt to recast and ‘reform’ the traditional views. Rather, Marx’s book engages the halakhic tradition on its own terms, seeking explanations and solutions on the basis of the classical premises of halakhic analysis. Marx’s insistence on grappling with the legal questions without losing sight of the existential pain underlying them, and his unfailing compassion for the disabled and their loved ones, give the reader new respect for Jewish law and its ability to address our most universal human concerns. The book will be of great interest to those in the caring professions, such as social work, therapy, and medicine, as well as scholars in the areas of Jewish law, Jewish studies and religion. It will also appeal to a wider, non-Jewish readership, who will be interested in how a religion-oriented society responds to these issues, which affect so many families. Dr. Tzvi C. Marx is a graduate of Yeshiva University, New York, where he received his rabbinic ordination. Associated for many years with the Shalom Hartman Institute in Jerusalem, he currently teaches at the Folkertsma Institute for Talmudic Studies, Hilversum, and lectures at the University of Nijmegen, Holland.

Jewish Law in Context A series edited by Neil S. Hecht Volume 1 JUDICIAL DEVIATION IN TALMUDIC LAW Governed by Men, Not by Rules Hanina Ben-Menahem Volume 2 AUTHORITY, PROCESS AND METHOD Studies in Jewish Law Edited by Hanina Ben-Menahem and Neil S. Hecht Volume 3 DISABILITY IN JEWISH LAW Tzvi C. Marx

The Institute of Jewish Law Boston University School of Law 765 Commonwealth Avenue Boston, MA 02215 Publication No. 27

D ISA B ILIT Y I N JE W ISH LAW

Tzvi C. Marx

L o n do n a n d N e w York

First published 2002 by Routledge 11 New Fetter Lane, London EC4P 4EE Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2003. Copyright © 2002 by Trustees of Boston University All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0-203-21951-1 Master e-book ISBN

ISBN 0-203-27460-1 (Adobe eReader Format) ISBN 0-415-27889-9 (Print Edition)

We express our appreciation to Beatrice, Jay and Judith Espovich through whose generosity this volume has been published in memory of The Honorable Norman Espovich

C ONTENT S

Foreword Preface Dedication

ix xi xii

1

Introduction 1. Halakha and disability: an overview 1 2. Disability 3 3. Method 8 4. Disability as reflected in the tradition 14 5. Confronting the dissonance 19

2

Moral imperatives governing disability 1. The human essence 21 2. Obligation as conferring dignity 28 3. Responsibility and interdependence 41

3

Extra-halakhic sources: biblical narratives and Rabbinic Aggada 1. Disability as perennial 49 2. Rejection, acceptance and ambivalence 53 3. Theology of disability 60 4. Morale and hope 65

1

21

48

4

Guidelines from charity 1. Theology: Imitatio Dei – emulating God in morality 71 2. Donor issues 72 3. Recipient issues 75 4. Aid 77

69

5

Laws on relating to the disabled 1. Overcoming estrangement 80 2. Limits of caring for incapacitated relatives 84

80

vii

CO N T E N T S

3. The role of liturgy 86 4. Identification with the disabled 91 06 Categories of disability 1. 2. 3. 4. 5.

96

Blindness 96 Mental dysfunction 107 Deafness/muteness prior to the nineteenth century 114 Contemporary deafness/muteness 119 Conclusion 127

07 Elemental dignity 1. 2. 3. 4. 5. 6.

128

Disability and the law of torts 128 Fulfilment of the obligation to procreate 134 Violating the Sabbath for the disabled 137 The obligation to educate 142 Sources that seem dismissive of the disabled 151 Concluding comments 158

08 Observances related to liturgy 1. 2. 3. 4.

160

Liturgy concerning physical and existential states 161 Synagogue observances 169 Rituals performed in the home 183 Final remarks 187

09 Non-verbal observances

189

1. Non-verbal precepts of contemporary relevance 189 2. Precepts related to the land and the Temple service 197 3. Final remarks 214 10 Preparatory observances and technological aids

216

1. Preparatory activities 217 2. Speech, hearing, and mobility aids 226 3. Final remarks 232 11 Conclusion 1. 2. 3. 4. 5. 6. 7.

233

Dialectical tendencies 235 Relationship of Jewish law on disability to scientific advances 236 Halakhic self-critique 238 The dignity of obligation 242 Fathoming the dissonance 244 Tikun olam 245 Concluding remark 248

Bibliography Index

250 255

viii

FOR EWORD

Disability in Jewish Law, the third volume in the series, Jewish Law in Context, is hereby presented as an introduction to a subject perhaps unfamiliar to many – disability in the Jewish sources. This volume will, we hope, provide readers with insight into the attitudes to disability reflected in the halakhic sources. Among the disabilities the Talmud routinely takes note of are deafness/muteness, speech impediments, blindness, infertility, and mental disability. Contemporary concern for the rights of the disabled has evoked considerable interest in the position of Jewish law in this regard, and Dr. Marx’s pioneering study is a welcome contribution for scholars as well as those with a personal or professional interest in disability. It is essential, however, that readers take seriously the series’ title, Jewish Law in Context. For this study is not a comparative study juxtaposing halakha and contemporary ideas, nor is it undertaken in order to present the halakhic understandings as precursors to current views. It is, rather, an attempt to delve honestly and openly into the authentic voices of Jewish law on disability, in its own context. It is hoped that this investigation will provide the reader with an important perspective that can be referred to in contemporary discussions of disability. Disability in Jewish Law is a comprehensive survey of the position of the halakha on questions pertaining to the obligations of the community toward the disabled, of the individual toward his disabled fellow, and of the disabled individual himself. Marx surveys the broad spectrum of attitudes to disability evinced in the Rabbinic and halakhic literature, some of which are disturbing to contemporary sensibilities. Rather than attempting to ignore or whitewash problematic passages, he seeks to balance them by citing sources that evince a more caring, more inclusive attitude. It is here that the author’s painstaking research is apparent, as he shows us that in almost every case where a negative attitude is openly expressed in the Talmud, there are either dissenting opinions or positive voices latent in the text. Marx brings these sensitive voices to the fore, and shows that as a rule, where there is an opinion inhospitable to the disabled, it is not necessarily the sole view that can be sustained on the basis of the sources. Marx’s approach can be characterized as constructive. The law never formally articulates an overall policy on the disabled, and it would be completely anachronistic to approach the sources with the intention of finding such a pronouncement. Rather, Marx attempts to piece together the halakhic perspective on disability and ix

F OR E WOR D

the disabled through analysis of the canonical sources of Jewish law and their interpretation in the vast halakhic literature. He attempts to discern how the tradition relates to the disabled from the internal perspective of the halakhic literature rather than from the external perspective of social or historical critique. His strategy is to identify the various legal categories, such as intent, dignity and religious obligation, that circumscribe specific halakhic discussions of disability issues, and to consider the degree to which the halakhic rulings that issue from these discussions are consonant with the broader ethical precepts that inform the tradition. This study is of critical scholarly import for a number of reasons. First and foremost, it fills an important lacuna in Jewish scholarship. It is the only comprehensive analysis of the position of Jewish law on disability yet undertaken. The analyses hitherto available are either partial, dealing with a single disability; limited in perspective, putting forward only interpretations espoused by a particular legal authority or stream within Judaism; or, written in Hebrew and hence inaccessible to the English-speaking reader. Second, the approach of Disability in Jewish Law is unique in that it integrates strictly legal with ethical analysis, and does so from the internal, intra-traditional Judaic perspective. Thus while it does not restrict itself to exposition of the law, but goes beyond exposition to analyze and critique the law, it does so on the basis of the law’s own premises. Finally, in a field often characterized by detached and abstruse reasoning, Marx’s study is distinctive in its unfailingly sensitive and responsive attitude to the immediate existential concerns of the disabled. While primarily a work of legal analysis, it nonetheless lays out, with great persuasiveness and courage, the possibilities for realigning the law, where necessary, so as to maximize inclusion of the disabled. Marx unfolds before the reader a wide and interconnected range of foundational halakhic concepts germane to disability issues, among them, the concepts of commandedness and the observance of precepts, the notion that all individuals are created in the image of God, and the obligation to be charitable and to take responsibility for one’s fellows. He explores the extent to which these concepts are reflected in specific laws, such as halakhic directives to the able-bodied regarding their moral and financial obligations to those requiring assistance. Marx examines a range of areas where the law acknowledges disability, among them, assessment of the status of individuals with respect to their legal obligation to observe the commandments; observances from which the disabled are exempt or disqualified; liturgy pertaining to disabilities; and directives regarding education of the disabled. He also addresses the impact of modern technology on laws pertaining to disability. In his introductory remarks, Marx himself recommends that this work not be viewed as a definitive exposition of disability in Jewish law, but rather, as an invitation to further dialogue on these existential issues. We invite scholars to reflect carefully on the questions addressed by this study, and to add their voices to the discussion, as is indeed merited by the vital importance of the subject. Neil S. Hecht The Institute of Jewish Law Boston University School of Law x

PR EFACE

“Who Gives Man Speech? Who Makes Him Dumb or Deaf, Seeing or Blind?” Exodus 4:1 I would like to thank Professor Neil Hecht, director of the Institute of Jewish Law at Boston University School of Law, and the series editor of Jewish Law in Context, for choosing this work as the third volume of the series. I am most grateful to him for making available to me the resources and the editing assistance of his Institute, which made the publication of this book possible. In particular, the input of my editor, Nessa Olshansky-Ashtar, was invaluable. As this book is partly based on my doctoral dissertation at the Catholic Theological University of Utrecht in 1993, I would like to take this opportunity to once again express my indebtedness to those who supported or mentored me in that undertaking, especially Rabbi David Hartman, Rabbi Yehuda Aschkenasy, and Mr. Joop Al. Despite the best efforts, I am aware that errors may nonetheless remain in this work. Even the Bible is an “imperfect” document in the sense that it was written “in the language of men” (R. Ishmael).1 As part of the discourse of man,2 this document is inevitably incomplete and f lawed. Yet I am hopeful that despite any errors that may be found by readers using this work as a learning companion, they will not be deterred from further study of this important material. It is not intended as a definitive exposition of the subject, but rather as a preliminary treatment that will encourage dialogue and further study. “Blessed art Thou, Lord, who teaches Torah to His people Israel.” Tzvi C. Marx September 2, 1999 1 BT Berakhot 31b. 2 The terms “mankind” and “man,” and masculine pronouns, are used in contexts that clearly encompass human beings as such only to avoid clumsy constructions such as “him/her,” “he/she,” etc.; their intended reference is men and women. I believe that instances where the gender distinction is germane will be easily discerned.

xi

DEDI C ATION

This book is dedicated to my parents Andre and Henny (nee Petrynek) Marx, who courageously survived an era when the Jewish body, even more than the spirit, became a subject of unbridled abuse by an enemy for whom its very presence was an insult. I also dedicate it to Isadore Ryback, a gentle man who was privileged to study in the Radom yeshiva in his youth and who had the courage to make aliya in his senior years; and to my father’s cousin Fernand Klein, who survived the German camps. I also want to commemorate three dear friends: Carole Fisher, whose zest for life inspired all those around her, as did her courage in the relentless struggle with her illness; Sharon Horowitz, whose moral beauty and shining presence lit up any room she entered, and whose premature death leaves a deep sadness in the hearts of all who knew her, and my Torah study partner Rabbi Moshe ‘Morty’ Bernstein, whose tragic passing robs us of a unique exemplification of religiosity, love and humor.

1 I NTRODUC TI O N

1. Halakha and disability: an overview Sensitivity to the disabled is a hallmark of contemporary culture in most Western countries. The compassion underlying the current awareness is hardly new to modern society, however, and permeates the monotheistic religions. It is at the heart of the Jewish tradition, and clearly reflected in the Jewish sources. The biblical foundations of the Judaic tradition manifest a sensitive, humane, and dignified attitude to all persons, regardless of individual differences. To a great extent, this attitude is expressed in the precepts, the divine commandments enjoining performance of or abstention from various acts, that constitute the structural framework of the tradition. Yet examination of the halakhic literature also reveals instances of apparent indifference, or even callousness, with respect to the disabled: laws and liturgical passages that appear to evince a dismissive, even derisive attitude toward individuals with disabilities. This inconsistency gives rise to a certain dissonance within the tradition, a dissonance that cannot be ignored by those who value its teachings. It is love and respect for the tradition, and recognition of its moral authority, that motivates this study and its methodology.1 While an

1 Little work on the subject of disability in Jewish law has been carried out to date. To my knowledge, only Joseph Blau’s “The Defective in Jewish Law” (1916) and Carl Astor’s . . . Who Makes People Different (1985), have attempted comprehensive treatments. Astor’s work presents an overview covering different kinds of disabilities, touching on the various realms encompassed by the halakha, and introducing biblical, Rabbinic, and responsa literature. But as it addresses the lay reader, its exploration of the halakhic discourse is limited. Blau’s article, though more scholarly, is brief. While he raises the question that concerns me – the dissonance between aspects of the laws that pertain to disability and the moral imperatives underlying the law as a whole – his solutions leave much unanswered. Other works have treated specific disabilities, such as Isaac Joseph Cohen’s Hebrew study of the blind and the law, David Feldman’s “Deafness and Jewish Law”; or aspects of specific disabilities, e.g., Y. Moshe’s “Electric Wheelchair on the Sabbath.” In Nishmat Avraham, his extensive commentary on Caro’s code, A.S. Abraham provides an up-to-date treatment of disability, citing current responsa, but his work does not constitute a comprehensive overview. The work of Moses Tendler and Fred Rosner on very specific halakhic situations affecting the disabled is invaluable in identifying areas where further research is necessary, and in covering recent halakhic decisions. Faitel Levin has also contributed to the subject in the context of his study of halakha and science.

1

I N T RO DUCT I O N

adequate examination of the Jewish approach to disability may entail critique of specific laws, this critique should, I believe, be carried out on the basis of criteria internal to the halakhic culture, and not simply on the basis of contemporary sensibilities. Indeed, the principle that the criteria governing the process of halakhic self-scrutiny ought to be internal is itself internal.2 Although this work is academic in nature, it is my hope that it will serve to enlighten readers, and among them, members of the rabbinate, by alerting them to the possibilities of inclusion on the basis of the classic sources of the law. The legitimacy of responsiveness to the marginalized, though clearly mandated by the tradition, will only come to the fore if those administering the law are sensitized to it. It is also my hope that this encounter will encourage the undertaking of observance by the non-obligated. My study reads the tradition as conceiving of human existence as worthy in itself in the eyes of God: achievement is irrelevant to human worth. While I do not deny that halakhic culture is inherently precept-oriented, I argue that this orientation does not conflict with the tradition’s broader ideals of compassion, helping, and responsibility. As these ideals are shared with other religions and societies, affirming their significance in the context of disability also highlights the universal elements in the tradition. Excluding individuals from full participation in religious activities on the basis of physical or mental impairment is offensive to contemporary thinking. But the possible lack of correspondence with contemporary views is not what drives my interest in Jewish law on disability; rather, the source of my unease is the intratraditional dissonance, the dissonance within the halakhic culture itself. It is the offense against Jewish ethical sensibilities that motivates my desire to clarify the position of the halakha. Biblical culture, as I will argue in the coming chapters, is inclusive, and does not regard the individual as dependent on specific mental or physical endowments. Its heroes, the patriarchs and matriarchs of Israel – Isaac, who is blind; Jacob, who limps; the initially childless matriarchs Sarah, Rebecca and Rachel, and the speech-disabled Moses – are no less esteemed because of disability. When the tradition admonishes us not to place obstacles before the blind, or curse the deaf, it clearly directs us, its adherents, to relate to the impaired among us with consideration. In general, the teaching of compassion for the disadvantaged members of the community – its orphans, widows, strangers or disabled – is a defining parameter of the culture. Overall, then, the aim of this book is to explore an internal ambivalence and to consider whether and how the law can better express the tradition’s ethical mandate with respect to the disabled. The structure of the book is straightforward: this introductory chapter sets the stage for the involved – and at times painful – analysis that will be presented in the coming chapters. After surveying the incidence, nature, and psycho-social consequences of disability, it presents the methodological parameters that structured my

2 Dishon, 1984.

2

I N TRO DUCT I O N

research, then notes a dissonance between the humane outlook of the tradition, on the one hand, and the law’s ambivalence toward the disabled, on the other. The rest of the book examines specific points, paying particular attention to areas in which the law can be interpreted or applied in ways supportive of the concerns, dignity and rights of the disabled. Chapters 2–4 explore the ethical teachings of the tradition with respect to disability, as reflected in the classic Jewish sources, which manifest sensitivity to the disenfranchised. Chapters 5–10 present a detailed examination of particular laws and liturgical passages of relevance to disability, most, though not all, of which, reflect this sensitivity. Chapters 5–7 examine halakhic directives to the able-bodied in their treatment of the disabled, while Chapters 8–10 examine halakhic guidelines for the disabled: precepts observance of which they are charged with or exempted from, and ritual activities from which they are disqualified.3 The closing chapter recapitulates the material and assesses strategies for mitigating the dissonance.

2. Disability The World Health Organization (WHO) distinguishes three separate, though related, concepts: impairment, disability, and handicap.4 “Impairment” denotes disturbances in physical or mental function at the level of the organ, such as blindness, amputation, mental retardation, mutism. “Disability” denotes a restriction of activity within the range considered normal: disturbances at the level of the person, such as difficulty seeing, speaking, grasping, using the lavatory, or inability to use public transport. “Handicap” denotes the meaning of a disability relative to the values of a society, for example, the low status accorded those who are immobile, reflecting society’s negative valuation of this disability. Thus while “disability” is a neutral term, “handicap” is value-laden, signifying the disadvantage resulting from an impairment that limits fulfilment of what are considered normal social and economic roles. 2.1. Incidence The following figures are intended to illustrate the pervasiveness of disability. Estimates of the percentage of persons who are disabled for the 20 countries of the United Nations Statistics Data Base (DISTAT) range from 0.2 percent (Kenya, Turkey) to 20.9 percent (Austria).5 In Israel the disability rate ranges from

3 Due to the complexity of these matters, my treatment is not exhaustive, but restricted to specific areas. 4 1991, p. 40. 5 WHO, 1991, p. ix, ‘International Classification of Impairments, Disabilities, and Handicaps’ (ICIDH); ‘Disability Statistics Compendium,’ Table ii, p. 44. The high degree of variability is partially explained by differences in what countries perceive as impairment and disability and their degrees of severity.

3

I N T RO DUCT I O N

9.1 percent to 17.5 percent, similar to that reported for other countries.6 There are 16 million persons in the United States with hearing impairment, the most prevalent chronic physical disability.7 In 1991, 4.2 million Canadians, constituting 16 percent of the population, had some degree of disability.8 Estimates indicate that in Holland in 1991, there were “upwards of 1.5 million people with a serious or very serious physical disability, 11.5 percent of the population,”9 including 200,000 working-age persons with major physical impairments;10 about 4 per thousand had severe mental handicaps, while the estimated proportion of slightly mentally handicapped people was 5.4 per thousand.11 The number of blind persons worldwide is estimated at between 27 and 35 million.12 Jewish disability statistics for the United States are difficult to arrive at. From samples, it was estimated in 1988 that 8 percent of Chicago’s Jewish population, or 20,000 people, were disabled.13 Fleischman estimates that in 1974 there were 25,000 deaf Jews in the United States.14 2.2. Import of disability If we are to appreciate the complexity of the issues at hand, an idea of the experience of disability, as well as its pervasiveness, is important. The Mishna admonishes us not to make judgments about another “unless you have stood in his place.”15 Moreover, the experience of disability is not unidimensional, but touches on every facet of one’s humanity, both privately and socially. A basic fact of the experience of disablement is the repugnance it arouses in the non-disabled. Aversion and avoidance are universal. Physical impairment is seen as “an infringement by nature, an intrusion that undercuts one’s status as a bearer of culture.”16 This revulsion toward disability is, in part, the result of labelling, whereby the disabled are categorized as different and related to as such,17 but it is not merely a reaction to difference. The “contamination” of the disabled is seen as compromising their very humanness.18

6 7 8 9 10 11 12 13

14 15 16 17 18

Bendel et al., 1987, 1989. Miller, 1986, p. 72. Statistics Canada, Oct. 1992. Fact Sheet . . ., 1991. Batavia, p. 12. Fact Sheet . . ., 1991. WHO, 1991, p. 16. According to the Task Force on Services for the Disabled headed by Aaron Schmidt, using numbers prepared by the Illinois Department of Rehabilitation Services, cited in Olshansky, 1988, p. 42. Fleischman, p. 39. Mishna Avot 2: 4. Murphy, 1987, p. 119. See Minow, 1990. Murphy, loc. cit.

4

I N TRO DUCT I O N

Adapting to disability means reconstructing every day to cope with its effects – the medical, occupational, practical and social problems it gives rise to, especially the stigma and isolation.19 The disabled individual must first learn to cope with the symptoms of the disease itself, then confront the broader ramifications of significant disability.20 Though much effort may be invested in this process, disability often brings in its wake depression and frustration, “not as symptoms but as consequences of the disease and its disabling effects.”21 In a delicate “balance of opposites” – accepting the disability, while fighting to surmount it,22 the disabled must learn to pace activities and cope with greatly diminished resources. Discovering new ways of performing everyday tasks, limiting those that cannot be executed, is taxing.23 A constant reminder that the individual is “less” than he once was, the transfer of mundane tasks to others also points to his incompetence to care for himself, his dependence.24 The individual must consult professional caregivers, thereby relinquishing responsibility for decisions concerning his own illness. He must accept definitions and judgments imposed by others, such as physicians, who possess the knowledge needed to reduce pain, enhance functioning, and verify claims for benefits and services.25 This legitimation process – the extent and origins of disabilities may be questioned in what seems like a bureaucratic gauntlet thrown up before the disabled by the assistance agencies – may generate a disaffection that leaves the disabled individual feeling unimportant and abandoned by the services on which he is dependent.26 The pain and fear of dependence increases with the severity of the disability, and is especially pronounced in those who rely on spouses or children for help with personal care and other practicalities of daily life. Fitting into someone else’s timetable heightens the sense of frustration and entrapment, leading to tension and conflict between caregiver and recipient. Even where help is willingly and selflessly given, the recipient often feels he is a burden on his caregiver. The cumulative experience of powerlessness takes its toll. Resistance to what would normally be unacceptable is weakened, and the disabled individual may act in ways that run counter to his aspirations and potential.27 He may believe himself to be even more powerless than is actually the case. Further, the guilt and shame experienced by the disabled constitute assaults on their dignity, identity and even their very humanity. This assault on the self may express itself in existential rage – bitterness at the fate that has made the disabled individual into a

19 20 21 22 23 24 25 26 27

Locker, 1983, p. 5. Locker, p. 14. Ibid., pp. 19–20. Ibid., p. 28. Ibid., pp. 40–41. Ibid., pp. 95–6. Ibid., p. 43. Ibid., pp. 49, 134; Callahan, pp. 174–87. Lerner, p. 2.

5

I N T RO DUCT I O N

shadow of what he could have been, expressed in “hostility toward the dominant society . . . one’s own kind, and finally . . . the self ”28 – and situational anger in response to upsetting exchanges with the able-bodied world. This hostility must be contained as the price for “normal” interaction with others. Frequently, such anger is vented only in the home. Helping professionals, recognizing that the effects of a long-term illness extend to one’s close associates, especially family, speak of family units, and not simply individuals, as “disabled.” The presence of a disabled person in a household may severely dislocate the lives of all its members, resulting in friction and strain, especially when accompanied by a lowered standard of living.29 The disabled individual’s simple physical dependency dominates family life. As noted, feelings of guilt abound: the self-accusatory guilt of the impaired individual, exacerbated by guilt over being a burden, and, at the same time, the family members’ guilt at being intact, taints “the very haven to which most people return for support, protection, and love.”30 Under the stress of disability, the divorce rate is over 50 per cent higher than in the non-disabled population, especially among younger couples, particularly following the onset of disability.31 Impairment to the body is paralleled by impairment in social standing. Indeed, it is the response of society to disability that stigmatizes it. “The greatest impediment to a person’s taking full part in his society is not his physical flaws, but rather the tissue of myths, fears, and misunderstandings that society attaches to them.”32 The stigma of disability locates the disable-bodied person on some distant edge of society, like the scapegoat sent out on Yom Kippur to an inaccessible region (Lev. 16:22). This relegation to social invisibility is manifest, for example, in the popular attribution of asexuality that renders acceptable mixed-gender rooms in hospitals. In a liminal state where they are “neither sick nor well, neither dead nor fully alive, neither out of society nor wholly in it,”33 the disabled become less than fully human, a perception that contributes to the widespread aversion that in turn yields segregation or avoidance. Some avert their eyes, avoiding contact; social contact between abled and disabled is strained as the disability remains at the center of consciousness though both sides attempt to normalize the encounter.34 Interaction with others is thus artificial and unavoidably distorted. In the current social reality, only in relations among themselves can the disabled find interpersonal satisfaction. Their shared identities, as whole, though disabled, seem to override hierarchical distinctions such as age, education, occupation and gender, allowing for the kind of intimate communication that cannot be realised with the abled.

28 29 30 31 32 33 34

Murphy, pp. 106–7. Locker, pp. 155–6, cf. Murphy, p. 204. But see de Witte, pp. 193–4. Murphy, p. 213, and see pp. 206–7. Murphy, p. 207; Locker, p. 159. Murphy, p. 113. Ibid., p. 132. Ibid., p. 122, citing Davis.

6

I N TRO DUCT I O N

Like everything else about their lives, the religious practices of severely disabled persons are limited by a variety of imponderables, including stamina, attention span, diminished acuity as a result of medication, anomalies in communication skills, lack of previous opportunities for socialization of any kind (including any previous experience with formal worship services).35 The disabled are not accorded the consideration that should follow from Judaism’s commitment to compassion and human dignity.36 This problem is not a recent development. In an 1864 sermon at London’s Great Synagogue, the rabbi declared: You are aware that the deaf and dumb children or our poor have to be brought up in an asylum where they have not the slightest opportunity of being trained in our faith and of becoming acquainted with the holy precepts of our religion . . .. Has not the Lord commanded, “Thou shalt not curse the deaf, nor put a stumbling-block before the blind”? Do we not act in violation of this commandment when we allow these poor children to grow up in utter ignorance of their religion?37 The Jewish community does not adequately educate and provide for the needs of its disabled members. Chronic illness, in limiting activity, results in a loss of personal, material, and social resources, which are consumed in coping with the illness and its effects. Studies show that adequate housing, food, clothing, health care, income support and social services are not made available to the Jewish disabled.38 In education, too, there is serious neglect: most deaf children, for example, receive no religious special-educational services.39 Nor has moral support been forthcoming: a Jewish chaplain at the Chicago Read Mental Health Center observed that “disabled Jews have experienced rejection from family and friends, and feel that the Jewish community has rejected them.”40 One parent of a disabled child wonders about “the attitude of Jews toward the disabled, toward those who falter, who fail in the race to achieve.”41 Religious services for the disabled are inadequate. Houses of worship are not “acoustically designed for hearing-impaired people.”42 Despite the fact that deaf Jews identify with their faith to the same degree evidenced by the general

35 Fortner, 1982, p. 5. 36 This cuts across the different denominations, as From’s study of Orthodox, Conservative, and Reform Jewish attitudes toward the physically disabled demonstrates. 37 Adler, p. 25. 38 Olshansky, p. 42. 39 Miller, p. 75; see too Fleischman, p. 39, and Schreiber, pp. 34–6. 40 Olshansky, p. 42, in a 1985 study, quoting Rabbi Morris Fishman. 41 Landau, 1982, p. 2. 42 Hurvitz, p. 48.

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population,43 the Jewish clergy, much like the non-Jewish, largely ignores the needs of the deaf.44 In Israel, the disabled enjoy no better treatment than do their counterparts in the Diaspora.45 These disturbing observations illustrate the gap between the avowed ethics of the Jewish, as well as the liberal-democratic-Western, cultures, and the brutal fact of indifference. Some have tried to explain the negligence of the Jewish community with respect to its disabled members with the argument that as a middle-class community, it ignores or stigmatizes those who fail to fit in with this lifestyle.46 It has also been argued that the common tendency to feel uncomfortable with those who are different leads to a situation where the disabled suffer, not only from the community’s indifference, but also from the unwillingness of their own families to admit to a problem. “You couldn’t get parents to enrol their kids in special programs for the disable-bodied because they were ashamed to identify themselves.”47 Indeed, this phenomenon may be related to the fact that the disabled are often relegated to distant institutions, with no attempt made to establish local urban institutions.48 The statistics on disability make clear that this indifference and neglect of the disabled is not due to objective marginality, but rather, to rejection: “It’s a classic example of community denial. Society generally tends not to want to see these people.”49 Such sentiments are not, however, expressed openly, as they contradict the values that society officially upholds – concern and kindness for the vulnerable, including the disabled. In societies that value independence, physical and intellectual prowess, and economic productivity, the disabled, unreciprocally dependent on others, are often relegated to a lower social position than non-disabled peers.50 Halakhic culture is, as I discuss below, to a large extent a competence-oriented culture. In the coming chapters, we will ask ourselves a troubling question – does halakhic tradition exhibit this tendency, and if so, to what extent? We now turn to a brief outline of some methodological issues pertinent to our study of the attitude to the disabled in halakhic culture.

3. Method 3.1. Methodology Generally translated as “Jewish law,” the term “halakha,” literally, “step” or “guidance,” has been defined as the final rabbinical decisions on rules of conduct,

43 44 45 46 47 48 49

Schein, pp. 76–7. Schreiber, p. 32, Schein, p. 84. See Rose, 1991, pp. 12–15. Olshansky, p. 42. Ibid.; and see Landau, p. 3. Jacob, 1982, p. 4. Olshansky, p. 42, quoting L. Levin, Director of Community Planning for the National Council of Jewish Federations. 50 Locker, p. 199.

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and more broadly, as “everything in the literature of Judaism which is concerned with action and conduct as directed by the law of the Torah.”51 Jewish law is articulated in a vast literature, the scope of which is reflected in Maimonides’ Code. Halakha is, on the one hand, a normative instruction that, though a product of debate and reasoning, is severed from its decision-making process, and hence appears definitive and apodeictic: “perform act x,” “abstain from act x.” But it also connotes the process of value clarification and interpretation by which the normative decision is reached: “maybe x, but on the other hand, perhaps y,” etc. This process is complex, involving the application of systemic principles, both explicit and implicit, that are themselves debated by halakhists.52 Both the decisions and the process shape the relationship between the disabled and the community, and both will be explored in this study. My approach to the relevant materials is eclectic, in that I use different interpretative strategies to access the classical halakhic texts. My general orientation to the sources, however, is that of the Lithuanian (rationalistic) yeshiva, which is based on systematic analysis of the talmudic materials into various jurisprudential categories.53 I have sought a synthesis that combines Judaic and philosophical study in appraising the halakhic tradition, even where this mandate leads to more questions than answers, an outlook in keeping, I believe, with the non-dogmatic cognitive tenor of the Talmud.54 In handling the sacred texts, the canonical-critical approach has been preferred over the historical-critical. It attempts to approximate the halakhic process as experienced by its normative community, that is, phenomenologically.55 The appropriateness of this conceptual model for treating the halakhic process is supported by depictions of talmudic authority as experienced by the community of those who subscribe to it. Neusner notes that: The [halakhic] argument, although unfolding by generations of rabbis, does not center upon the authority and biography of the ancients, but about their timeless, impersonal reasons for ruling as they do. The participants

51 52 53 54

Herzog, 1965, vol. 2, p. 302; vol. 1, p. xvi. Roth, 1986, pp. 1–2. See Soloveitchik, 1983 for a description of this type of analysis. See Hartman, 1985, pp. 203, 258. Hartman has been a significant model for a contemporary philosophically-oriented talmudist hoping to make his way astride the worlds of both the rabbinichalakhic and the Western-philosophical cultures. 55 Advanced by Childs, J.A. Sanders, and Morgan, this perspective is associated with hermeneutic philosophy in the tradition of Gadamer: Every time will have to understand a text handed down to it in its own way, for it is subject to the whole of the tradition in which it has a material interest and in which it seeks to understand itself . . . it is also always co-determined by the historical situation of the interpreter and thus by the whole of the objective course of history. . . . The meaning of a text surpasses its author not occasionally, but always. (Linge, 1976, p. xxv, quoting Gadamer)

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in the argument sometimes are named, but the most interesting constructions are given anonymously . . .. Talmudic thinking stands over against historical, including psychological, interpretation because of its preference for finding abstraction and order in concrete, timeless problems of daily life. What counts is reason, ubiquitous, predominant, penetrating.56 Similarly, expressing his sense of the ahistorical halakhic process, Soloveitchik comments: The consciousness of halakhic man, that master of the received tradition, embraces the entire company of the sages of the masorah [received tradition]. He lives in their midst, discusses and argues questions of halakha with them, delves into and analyzes fundamental halakhic principles in their company . . .. He walks alongside Maimonides, listens to R. Akiba, senses the presence of Abaye and Rava. He rejoices with them and shares in their sorrow.57 From the existential perspective of those who shaped the law, controversies over value clarification and how laws are to be applied in practice are argued as if the tradition emerged synchronically. Given this orientation, it is of special interest to see how the tradition responds to new realities. A popular myth maintains that traditions are not open to engagement with developments in society and knowledge; I hope to show that very often new insights have occasioned a re-orientation of traditional understandings of the disabled person’s experiences and potential. The halakhic culture’s responsiveness to these developments is pertinent not only to the disabled, who aspire to fuller membership in their societies, but also to those who seek a less simplistic understanding of the robustness of traditional cultures in their encounter with modernity. The canonical-critical approach is often decried as naive, as blind to critical attempts to understand sacred texts in their historical contexts, with the help of insights from comparative linguistics, literary criticism, and archaeology. How, it is argued, can theological texts composed in other linguistic universes of discourse, within cultural realities far removed from the current situation, be assumed to be of contemporary relevance, as if historical factors are of no consequence, as if we have no cultural uniqueness? I agree that this question is an important one, yet, persuaded of the impossibility of transcending the limits of our reality, I share the post-critical sceptics’ disillusionment with purely historical understanding. To get at the “real” meaning of a theological axiom that was formulated two thousand years ago by divesting oneself of all that has culturally intervened since then is a

56 Neusner, 1975, p. 404; “Mishna is profoundly anti-historical and anti-contextual. . . . The events of its day play no role in the important shifts and radical turns of the law” (1980, pp. 53–4). 57 Soloveitchik, 1983, p. 120.

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futile endeavor: there is no way to execute such a divestiture, since the very attempt manifests a contemporary bias. This approach takes seriously such issues as the role of community in interpretation, and most importantly, the spirit of contemporaneity and synchronicity within which the traditional halakhic mind is embedded. The canon is not thought of as belonging to the past, though its narratives and directives emanate from ancient times. The canon is encountered by those to whom it is a sacred document as if it were composed yesterday, for it is “the nature of canon to be contemporized.”58 As a vital set of imperatives whose true definition derives from the process of ongoing resignification, the halakha is set in an unlimited and yet bounded process that allows the contemporary community of faith to perpetuate its belief system. This renewal of the meaning of the received tradition by each succeeding generation renders the tradition contemporaneous. I profess a halakhic attitude described by Leo Strauss as one of “critical fidelity,” wherein faithfulness to one’s tradition is not incompatible with a critical perspective.59 In a profound sense, only an honestly critical attitude towards the received tradition can carry it forward into new contexts while maintaining its integrity. The living tradition thrives only at the interface between the present – the community and its contemporary understanding of what the law demands currently – and loyal acceptance of the enduring Sinaitic undertaking. 3.2. Sources Given that arguments relevant to one domain of Jewish law are not necessarily applicable to others, in citing the extensive halakhic literature, the talmudic divisions, also adhered to in the codes, between ritual matters, economic transactions/civil matters, marital issues, and Temple matters, are upheld here as well. Differential amenability to flexibility, as well as qualitative distinctions, demarcate the various realms. My study, focusing on ritual law, is not exhaustive. It does not treat the situation of the disabled with regard to personal status, civil law, or laws governing the priesthood (kehuna). Unencumbered by the interpersonal issues that must confound any purely religious understanding of these areas, ritual law can shed a purer light on the halakhic status of the disabled. Consider, for example, marital and economic matters. The religious elements in these spheres are complicated by the fact that another individual is involved, an individual with emotional and social, as well as spiritual, needs. While the ritual domain is not completely free of interpersonal considerations, here the disabled individual stands alone, so to speak, before God. Here, then, questions of how the covenant is expressed and mediated on matters related to the disabled can be focused on relatively directly.

58 Sanders, 1972, p. xv. And see Sanders, 1984. 59 Strauss, 1965, p. 24.

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Aggada A distinct component of the backdrop against which the relevant laws must be understood is the extra-legal, non-normative material termed Aggada: Rabbinic explanations and elaborations on biblical themes. It is particularly helpful in revealing the mind-set of the community that interprets and administers the law, influencing its views on the integration or exclusion of the disabled. The Aggadic material often indicates the conduct which, though not mandated by law, the community ideally aspires to. Although primarily a study of the law, this work draws heavily on the Aggadic literature, which I see as the environment within which the law formulates its rulings. Attitudes to the disabled are reflected in both aspects of the tradition: the legal component, both biblical and Rabbinic, and the extra-legal, encompassing the lore of the talmudic period as well as most of the midrashic literature. Some scholars view the non-formal aspect of the Aggada as precluding halakhic relevance. Blidstein exemplifies this when he explains the limited application of a seemingly great principle of Jewish law – the principle that commandments are overridden for the sake of human dignity – as due to its originating in the Aggada rather than in halakhic sources. He suggests that as a rule, halakhic norms are not formulated on the basis of principles whose origins are primarily Aggadic.60 This dismissive attitude to Aggada has been challenged: There is an organic connection between halakha and aggada . . . a mutual dependence between the creation of halakha and of aggada. The halakha influenced the creation of aggadic tales interpreting the deeds of the Patriarchs and the Bible in general, as well as the creation of stories, parables and ethical dicta. On the other hand, we can point to many halakhot that were formulated under the influence of religious or social ideas current in aggadic literature . . .. This creative mutuality between halakha and aggada underscores once more the pervasiveness of the halakha in the life and thought of the nation. Conversely, the nature of halakha and its development can be adequately understood only from the perspective of this correlation with religious thought and aggada.61 The pre-eminence of law should not diminish our respect for the influence of biblical and Rabbinic lore on the halakhic process, if only as a corrective to mere legalism – mechanical legislation and observance.

60 Blidstein, 1982–3, p. 181. This attitude to the Aggada has its roots, in part, in the Geonic rulings that “one does not rely on Aggada.” Citing Otzar Hageonim, Heschel ascribes this view to Saadya Gaon and R. Hai Gaon (1962, vol. 1, p. xxv). 61 S. Safrai, p. 127.

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3.3. Problematics Two questions suggest themselves: (1) To what extent do the sources encompass a unified approach to disability? (2) Is it legitimate to cite opinions that support inclusion, and downplay those favoring exclusion? In this study I attempt to build the case for inclusion of the disabled largely on the strength of discussions of the various exempting clauses scattered throughout the sources. Spread throughout the biblical and Rabbinic literature are elements of law, liturgy and lore that relate, directly or by way of allusion, to disability and the disabled. Only occasionally is there a more concentrated treatment of the subject in the halakhic literature. Yet while there is no articulated theory here of the personhood or entitlement of the disabled, we can nonetheless use these disparate discussions to reconstruct the implicit underlying attitude. It would be anachronistic, indeed, unreasonable, to expect the Talmud to include a tractate “Disability” covering the subject of disability in a systematic, focused way. Only in contemporary society has disability garnered concerted scholarly, societal or legislative attention. It might be argued that I myself noted, above, that the disabled tend to be dismissed, disregarded, or rejected in most social and cultural contexts. This being so, it might be thought that here too, in the halakhic literature, the disabled are mentioned only to be promptly dismissed. The sources have indeed often been so read. I shall show, however, that this reading cannot be sustained. While, to the uninitiated student, the sundry remarks may appear casually tacked onto talmudic discussions for the sake of formal completeness rather than out of any considered approach to disability, this impression is misleading. Closer scrutiny reveals that in almost every discussion of the performance of religious observances, the question of whether disability exempts or disqualifies individuals from participation is raised; the disabled are an undeniable presence in the halakhic mind. The contemporary reader may initially be disconcerted by the apparent inconsistency of meaning and application of the talmudic terms used to classify and refer to disabilities, particularly mental disabilities. The Sages, we must not forget, had no scientific studies of the mind to consult in attempting to analyze what we today view as a subtle, complex and interrelated web of psychiatric disorders, genetic dispositions, cognitive patterns and behaviors. The Sages struggle with the topic, not always succeeding in articulating the characteristic features that distinguish the different disabilities. The Sages cannot transcend the limits of the knowledge available to them in their own time. That they even hover at the edge of these limits is an achievement worthy of our attention. When we consider that, despite tremendous strides in piecing together the biochemistry of the mind, mental function and dysfunction are, even today, still shrouded in mystery, the degree of perspicacity displayed by the Sages on this abstruse subject is truly remarkable. It poignantly attests to their commitment to understanding the human experience. The capacity for self-critique exhibited by the halakhic dialogue follows from this attitude and reflects our best hope for the dignified integration of our disabled as insight into their reality grows.

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The second question I noted is that of the legitimacy of citing opinions that support inclusion, and downplaying those favoring exclusion. In keeping with my interest in seeking ways to make possible greater inclusion of the disabled, where opportunities for such readings of the sources are available, they are elaborated upon to a greater degree than where such readings are explicitly discredited. An example is the Kesef Mishne commentary’s discussion of various ways to read Maimonides’ ruling apparently disqualifying the deaf from reading the Purim Megila. Exclusion through exemption and disqualification represents the principal area of incompatibility with the ethics of inclusion. Such rulings are noted, and an attempt is made to explain them in the most favorable light possible – and indeed, innocuous rationales for such apparently “offensive” exclusions are often available. But identifying halakhically-sanctioned avenues for greater inclusion is, after all, the ultimate motivation for this study. Such avenues must at times be ferreted out of intricate disputations, inferred via delicate metaphysical distinctions, sensed in the nuances of seemingly irrelevant debates.

4. Disability as reflected in the tradition 4.1. Empathy The emphatically humane character of Judaism creates the expectation that it accords the disabled respect, even reverence. Because the tradition mandates emulation of divine attributes, “as He is Gracious, so you be gracious, as He is Compassionate,” etc.,62 Judaism values compassion, and Jews aspire to be “compassionate descendants of compassionate people.”63 Indeed, one who manifests cruelty is suspected of flawed lineage.64 In such a culture, the disabled should enjoy exemplary caring and consideration. Dereliction in observance of the commandment, “Thou shalt not curse the deaf, no, put a stumbling-block before the blind” (Lev. 19:14), is viewed as a serious betrayal of the covenant: “Cursed be he that maketh the blind to go astray in the way” (Deut. 27:18). Moreover, the redemption from Egypt, that founding event in Israel’s history, was, according to some, orchestrated specifically for a seriously disabled people. The injunction to “remember the day when thou camest forth out of the land of Egypt all the days of thy life” (Deut. 16:3) ensures collective acknowledgment and recollection of the pain, trauma, and disablement the Israelites suffered while in bondage. The story of the redemption from slavery is related by first recalling the degradation, and only afterward, the passage into freedom.65 The Jewish slaves

62 63 64 65

BT Sota 14a. JT Kidushin 4:1, BT Yebamot 79a. Code, Law concerning Gifts to the Poor, 10:1–2. Mishna Pesahim 10:4.

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who emerged triumphant after four hundred years of bondage are depicted as follows: Said R. Tanhuma son of R. Abba . . . when Israel came out of Egypt the vast majority of them were afflicted with some blemish. Why? Because they had been working in clay and bricks and climbing to the tops of buildings. Those who were engaged in building became maimed through climbing to the upper layers of stone; either a stone fell and cut off the worker’s hand, or a beam or some clay got into his eyes and he was blinded.66 The slaves taken out of Egypt were broken, physically and mentally. The graphic depiction of the consequences of the back-breaking servitude – avodat parekh – is recalled at the Seder, the festive Passover meal. On this occasion, it is dramatically narrated how a healthy family was transformed into a disabled people by the cruelty and the excesses of a slavery that forced them to build the garrison cities of ancient Egypt (Exod. 1:11). Neither this exodus from slavery, nor the messianic redemption envisioned by Jeremiah: “Gather them from the ends of the earth – the blind and the lame among them” ( Jer. 31:7),67 is contingent upon good health and able-bodiedness. However, these seminal events are conceived differently – in the Egyptian exodus, the blind and the lame are not merely “among them,” but are “the vast majority.” They are the archetype of those destined to become the nation of Israel. This image is also poignantly evocative for a generation that witnessed the liberation of the broken concentration camp survivors, many of whom found refuge in Israel and became builders of a new nation. Thus the Jewish religion sees God as shaping an elect nation out of crippled and traumatized slaves. Why is the divine plan, the covenant, implemented through the most unlikely candidates, the broken and incapacitated? To establish unambiguously that the redemption was not man’s achievement, but a divine act: “Who hath made man’s mouth? or who maketh a man dumb, or deaf, or seeing, or blind? is it not I the Lord?” (Exod. 4:11). Moses instructed the Israelites to remain indoors on the eve of redemption (Exod. 12:22), perhaps to emphasize its divine character.68

66 Numbers Rabbah 7:1. See also Leviticus Rabbah (Margaliot) 18:4; Numbers Rabbah (Vilna) 13:8; Songs Rabbah (Vilna) 4:7, 1; Pesikta Rabbati (Ish Shalom) 7:7; Otzar Hamidrashim, p. 486. In Pesikta de-Rav Kahana (Mandelbaum), 12, “some,” and not “the vast majority,” are reported to be disabled. 67 See Midrash on Psalms, 31:2, 36:6, 107:3, for a depiction of God’s redemption of Israel in the messianic era. 68 See the Passover Haggada, where God is the exclusive “hero”; Moses is not mentioned even once. Whether this is also true regarding the messianic redemption is debated by R. Joshua and R. Eliezer in BT Sanhedrin 97b. See also BT Berakhot 12b on whether the Exodus is paradigmatic of all future redemptions and will be replicated at the time of the future redemption, especially given the text of Jer. 23:7.

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The disabled, having tasted the bitter fruit of limitation and its humbling consequences, have also been portrayed in a midrashic parable as especially appropriate to model religious culture: R. Abba b. Kahana explained it in R. Levi’s name . . .. A king built a palace and lodged in it mute people, who would rise early and pay their respects to the king with gestures, with their fingers and with their handkerchiefs . . .. Said the king, “If these, who are mute, rise early and pay their respects with gestures, with their fingers and with their kerchiefs, how much more would they do so if they possessed all their faculties!” Thereupon the king lodged in the palace men gifted with speech, who arose and seized the palace, asserting, “This is not the king’s palace: it is our own!” “Then let the palace return to its original state,” the king ordered.69 Because of their humility, the disabled are portrayed as more disposed to worship than the able-bodied, whose potential for superior religious comportment is thwarted by arrogance. Asked whether one who is lame can serve as cantor in the synagogue, R. Meir of Rothenberg replies that, on the contrary, It is better if the reader is deformed. God is not like a king of flesh and blood who uses whole vessels and throws away those that are broken. God prefers broken vessels, as the Psalmist declares: “A broken and a contrite heart, O God, Thou wilt not despise.” (Ps. 51:19).70,71

69 Genesis Rabbah 5:1 on Gen. 1:9. See also Genesis Rabbah 28:2 on Gen. 6:7; Lamentations Rabbah 1:17, 52 on Lam. 1:17. R. Abba adduces this parable to explain that the flood came to restore the simple worship that had been disrupted by human arrogance. 70 Maharam of Rothenburg, Teshuvot Pesakim Uminhagim, ed. Isaac Zev Kahana, part 1, p. 53. 71 See Mekhilta de-Rabbi Ishmael (Lauterbach), pp. 273–4 and BT Nedarim 38a, lauding the meek in spirit, a requirement for prophetic endowment. However, physical strength, intellectual capacity, and wealth are further requirements. Flusser, 1960, discusses the question of why the poor in spirit are blessed in Jewish and Christian writings. R. Meir of Rothenberg adds that the disqualification of those with physical disabilities from serving as priests officiating in the Temple (Lev. 21:18–23) is limited to the Temple, but does not explain why God favors broken vessels in the synagogue but not the Temple. We are, admonished by R. Joseph to honor an aged scholar despite his loss of faculties he is compared metaphorically to the broken tablets of the Law that were housed in the holy ark, despite their fragmented and useless condition, together with the intact second set (BT Menahot 99a, interpreting Deut. 10:2). Admittedly, here the point is that we are to honor one who is no longer capable of serving, because he once served, and not that incapacitated members of society are to be seen as the ideal channel for cultural realization. The latter mandate – to view the disabled as bearers of God’s image and law – is a far greater challenge.

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Indeed, in the Talmud we find the view that with the destruction of the Temple, prophecy was taken away from the prophets and given over to the mentally disabled (shotim) and infants.72 As noted, this study will analyze the intricacies, controversies and basic intuitions of Jewish law in an attempt to determine whether it indeed relates to the disabled as equal – if not favored – members of Jewish society. 4.2. Halakhic ambivalence A society’s treatment of its weakest members reveals its moral character. In a culture that proclaims human dignity as its central value, do the disabled have dignity? Modern ethics is clearly offended by the exclusion of any from full social participation and equal access to community life due to any personal circumstance, including disability. Is Jewish law receptive to this attempt to foster maximalization of human fulfilment? Halakhic culture is characterized by unconditional affirmation of the value of every human life. However, because piety and religious status are measured by observance of the precepts, the mitzvot, it is also characterized by admiration for competence and mastery, both in the realm of conduct, and in that of learning. Impairment poses a difficult challenge to the halakhic culture, which – as its vocabulary of mitzva and maase, commandment and action, attests – esteems mastery of the law, observance of the precepts, and forthright action.73 Clearly, the physically and mentally infirm are incapable of achieving such mastery. Must they incur further distancing and loss of self-esteem due to their exemption or disqualification from observance of certain precepts? Does Jewish law provide for the spiritual self-expression and self-respect of the disabled via precept-observance, or are the disabled excluded from the halakhic universe? If indeed a distancing tendency exists in Jewish law, is it inevitable – is the halakha innately dismissive of disabled individuals because of its character as an achievement-centered tradition? Can it broaden opportunities for inclusion and foster awareness of the needs of those with disabilities? In the application of the law, can allowances be made for individual differences in function? Jewish tradition encompasses two attitudes to the disabled, one exclusionary, another, integrative. The former defines the person by his disability, re-categorizing him outside the customary norms. The disabled individual is seen, not as an ordinary person, but as one who is “disabled,” the qualifier “disabled” diminishing the “personhood.” To illustrate this halakhic propensity, consider that the deaf-mute is exempted, and sometimes disqualified, from observance of the commandments, as we will see in the coming chapters.

72 BT Baba Batra 12b. 73 See Soloveitchik, 1983, for a typological portrayal of the halakhic culture’s hero.

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The integrative attitude, on the other hand, views a disability as an element of a whole human being and keeps the disabling effect of the disability in proportion. It perceives the disabled individual as someone who needs help to overcome the limitations of his disability but is essentially like any other member of society. The responsum of R. Meir of Rothenberg and the view of R. Abba cited above seem to support this approach, on which power and competence are not the sole defining traits of Jewish worth.74 Humility, gleaned from the existential suffering of the broken and pained, appears, on this understanding, to count for more. The tension between the two tendencies is well illustrated in the continuation of the midrash quoted earlier. R. Tanhuma contrasts the central significance of the disabled in Egypt with their devaluation at Sinai: When they came to the wilderness of Sinai, God said, “Is it consonant with the dignity of the Torah that I should give it to a generation of impaired people (baalei mumim)? If, on the other hand, I wait until others take their place, I will be delaying the giving of the Law.” What then did God do? He bade the angels come down to Israel and heal them.75 The dignity of Torah could not suffer the disabled, according to R. Tanhuma. Or differently put, redemption from Egypt could accommodate the disabled, but revelation could not. There appears to be profound theoretical ambivalence underlying the law. It seems paradoxical that a tradition which entertains the notion that prophetic powers could devolve upon the cognitively less-capable restricts the religious obligations of the disabled. One might concede due cause for this caution with regard to precepts governing civil and criminal matters, since these depend upon interaction and accords between parties; hence, some minimal level of competence in undertaking mutual obligations is required. But what of the broad range of other religious actions with respect to which no others are involved? In what sense is a less competent person’s ritual act, such as the waving of the lulav on the Festival of Tabernacles, offensive? The disqualification is not a consequence of divestment of covenantal identity, for the disabled individual is still perceived unconditionally as a covenantal partner. One contemporary halakhist distinguishes the exemption and disqualification of the disabled individual from that of the Gentile, who has no covenantal standing.76

74 See too BT Yoma 69a, where on R. Joshua b. Levi’s view, theological “weakness” or restraint is superior to “power,” and Mishna Avot 4:1, where strength is equated with overcoming one’s natural impulses. 75 Numbers Rabbah 7:1. 76 R. Moses Feinstein, Responsa Igrot Moshe, YD 2:7.

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That the disabled person is exempt from performing certain actions77 has no bearing on his covenantal status. Nevertheless, the question of why observance is primarily mandated for the whole-bodied and whole-minded, and the disabled individual appears to be relegated to halakhic liminality, remains. Evidently, there is something unsettling about disability in the halakhic culture, and a distinct reluctance to embrace inclusiveness. The dissonance between Judaism’s unconditional affirmation of human life, and its discrimination against the disabled by partial, and in some cases, total, exclusion, exemption or disqualification from observance of many of its precepts, does not sit easily. Indeed, it cries out for understanding, if not resolution; and if complete understanding is unattainable, for a better understanding of the problem.

5. Confronting the dissonance A review of these opposing tendencies in Judaism is also of interest from the perspective of general ethics, for it touches upon a number of contemporary philosophical concerns, such as personhood, autonomy vs dependency, responsibility, freedom of choice, and self-expression. Although I opened the discussion of the source material with a thought-provoking midrash, the evaluation I have in mind goes well beyond quoting aphorisms from the sources that express a sympathetic attitude to the disabled. What is needed is a comprehensive examination of halakhic priorities in the context of issues that arise in daily life. My study also seeks to locate the halakhic discourse within a wider context. Generally, works on matters of Jewish law address the issues in their purely legal context, and do not attempt to fit them into a broader context. Yet while couched in unfamiliar language, halakhic discourse, like all legal discourse, is nevertheless engaged in grappling with issues of deep concern to society at large, all the more so given that Western culture is permeated with biblical and Judaic teachings on the value of human life. Societies and cultures that share a historic repugnance to disability can benefit from knowledge of Jewish ambivalence regarding attempts to embrace the disabled within the community. Further, in explaining itself to those outside its commitments, the law has an opportunity to monitor and even, to a certain extent, overcome the limitations of its self-referentiality. This may prevent its being distanced from commonly-held ideas regarding the nature of disability.78 While the ritual behavior in question is indeed an internal matter, this by no means renders insight into the underlying arguments and dilemmas irrelevant or valueless to those outside that religious

77 Psul gavra as opposed to psul maase. While he does not use these terms, his explanation clearly invokes these concepts. See “Parity of Obligation,” Chapter 2 below. 78 For more on the relationship between Jewish law and general culture, see Rackman, 1986. Rackman calls for an approach to halakha which is “sociological, psychological, and teleological” (p. 166).

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community. On the contrary, their presentation to a wider public can engender mutual enrichment. There is undoubtedly a danger that the religious culture will be reduced to simply another formulation of the secular culture’s ideas, a process that would undermine the mutual enrichment I am postulating. Success in translating “theological convictions into terms acceptable to the non-believer” often “substantiates the view that theology has little of importance to say in the area of ethics . . .. Theologians have something significant to say about ethics, but they will not say it significantly if they try to disguise the fact that they think, write, and speak out of a distinctive community.”79 Yet this fear should not constrain the religious culture from sharing its debates and insights by communicating in more accessible terms. The halakhic discourse gains by being “unpacked” in a new way: it must address questions from other disciplines it would not ordinarily answer to. Ultimately, however, disabled persons stand to gain the most from this dynamic. Exposing what has been suppressed or concealed for various reasons, including irrational, unconscious fears, may correct the indifference and discrimination too commonly experienced by the disabled. In what follows, we will examine the covenantal directives underlying the law, before proceeding to exploration of the relevant legal rulings themselves. We will attempt to forthrightly chart their premises and implications, and the degree to which they leave room for interpretation and innovation.

79 Hauerwas, 1983, pp. 35, 32; cf. p. 17.

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2 M OR AL I M PER ATI V E S G OV ER NI NG DI SA B I L I TY

The relation of Jewish law toward disability issues is a function of its approach to human life, responsibility and the value of obligation. Thus before we examine the legal questions proper, an examination of these underlying concepts is in order. The principal source for the almost unconditional worth ascribed to every human being, regardless of his capacities, is the depiction of man in the Bible as created “in the image of God” (betzelem elohim), a striking expression that signifies man’s inherent worthiness. One important way in which man realizes this endowment is through observance of the precepts, the commandments (mitzvot). By performing concrete acts in fulfilment of the precepts, awareness of this endowment is continuously reinforced. Status devolves upon the individual by virtue of this engagement in carrying out precepts; the individual gains dignity from the imposition of this obligation. Because the disabled are exempted from the obligation to fulfil many precepts, often out of compassion, their status is correspondingly devalued. Closely connected to these notions are those of responsibility, which permeates Jewish life at every level, and interconnectedness (arevut) between the members of the community. As we will see, the ideals of responsibility and interconnectedness mandate concern for the needy, the weak, and the vulnerable. These concepts are thus moral imperatives that define the contours of life within the framework of the halakha.

1. The human essence 1.1. Image of God On the biblical account of creation, humankind is fashioned “in the image of God.”1 This notion is thus one of the cornerstones of the Jewish concept of human worth. The other, stressed in the Rabbinic sources, is that of human dignity

1 A thorough account of the concept can be found in Belkin, In his Image, esp. ch. 5, “The Sacredness of Human Life,” pp. 97–116.

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(kevod habriyot). To what extent do these orienting concepts apply to the disabled? Do the physical and mental prerequisites of full covenantal obligation and privilege also condition basic human entitlements that follow from man’s creation in the image of God? While, in a sense, all of creation is a reflection of its maker, the Bible emphasizes the distinction between man and the rest of creation – humans are conceived as reflecting God in a unique way. But what exactly is intended in describing the human as imprinted with the divine image? The divine component in man has been variously located in his appearance, physical features, intellect, creativity, and capacity for relating.2 What then of one who is disabled, “cut down” more than most? Is the divine likeness of such a person less than that of his non-disabled counterpart? From the biblical story itself, it appears that man was able to suffer the loss of divine-like magnitude in his physical endowment without any diminishing of his divine likeness. He continues to be described as so graced even after the Flood (Gen. 9:6). R. Samuel b. Nahmani, citing R. Johanan, locates the image of God in the intellect: “The extra intelligence that is present in man is the true form of man, of which it is said, Let us make man in our image, after our likeness (Gen. 1:26).”3 Further interpreting that Midrash, it is related that Moses objected to writing this in the Torah, arguing that to state that man was a kind of divine replication, “in our image, after our likeness,” was to invite heretical claims of human divinity. “Let whoever errs, err,” was the divine response to this objection: it is important for man to be aware of his “lineage” even at the risk of an inflated self-concept. In the Maimonidean tradition, man’s likeness to God is identified with the cognitive faculty.4 A variant of this approach links the human emulation of God to the capacity for speech. Speech allows humans to share insights to a degree that far exceeds the communicative capacities of other living creatures. Onkelos renders “a living soul” (nefesh haya) in Genesis 2:7 as “a speaking spirit” (ruah memalela).5 Similarly, Nachmanides defines man as “the speaking being.”6 Caro, too, identifies man’s intellectual capacity with his ability to communicate, likewise designating the human as “the speaking entity.”7 Azriel Rosenfeld sees speech as the central feature of the human essence, citing the view of R. Jacob Emden that Rava’s golem, destroyed by R. Zeira,8 would not be counted in a prayer quorum, because in lacking intelligence, it was not

2 See Novak, 1979, pp. 361–6; Genesis Rabbah 8:9. 3 Midrash Hagadol on Gen. 1:26. 4 Guide 1:1, Code, Laws concerning the Fundamental Principles of the Torah 4:8. According to Novak, p. 361, this perception of man’s uniqueness has antecedents in Plato, Aristotle, and the Stoics, and made its way to Jewish theology via Philo. 5 See Rashi ad loc. 6 On Gen. 4:11; he explains muteness as a failing of the sinew in the tongue. 7 Kesef Mishne on Code, Laws concerning the Fundamental Principles of the Torah 4:8. 8 BT Sanhedrin 65b.

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human.9 R. Solomon Edels explains that it lacked “the spiritual power, namely speech, and had only animal vitality”; R. Gershon Leiner differentiates this creature from deaf-mutes: “even though among true men there are deaf-mutes who cannot speak, this is only because their mouths are [incapable], but they do have the [basic] power of speech.”10 Inability to speak lies behind the general talmudic attitude that the deaf-mute lacks intelligence. Since he cannot speak, there is no way to assess his cognitive functioning.11 Novak criticizes this intellectual understanding of “in the image of God” because, since human thoughts are unlike God’s thoughts (Isa. 55:8), it provides no way to differentiate the man/God relationship from the relationship between God and other created beings.12 Here Novak differs from Maimonides, who was also cognizant of the varying natures of divine and human knowledge, yet maintained that the divine imprint in man does stem from his intellect.13 Novak argues, however, that although humans have this gift to a vastly greater degree than all other creatures, they are nonetheless still far from cognitively emulating God. Novak suggests an understanding of “in the image of God” as signifying “man’s whole presence before God and man’s apprehension of this presence,”14 in support of which he adduces R. Akiba’s teaching that man is beloved in that he is created in God’s image and even more beloved in that this is known to him.15 The awareness of his potential for dialogue with God – and with other human beings – is the key to man’s humanity and worth. As Heschel puts it, “The divine symbolism of man is not in what he has – such as reason or the power of speech – but in what he is potentially; he is able to be holy as God is holy.”16 Novak prefers this understanding because it does not abstract any particular quality from human being, but sees the individual’s whole being as reflecting the image of God.17 This is a distinct advantage over the intellectual approach, for it makes the divine endowment invariant. Were intellect the defining quality, Novak argues, the humanity of those of inferior intellect would be impugned.18 Similarly, Novak questions the identification of “the image of God” with freedom

09 Rosenfeld, 1977, pp. 59–60. 10 Maharsha on Sanhedrin 65b; cf. R. Gershon Leiner, Sidrei Taharot on Mishna Ohalot 5a, cited in Rosenfeld, p. 61. 11 See Chapter 6 for fuller treatment of this point. 12 1979, p. 361. 13 Code, Laws concerning the Fundamental Principles of the Torah 2:8. 14 Novak, p. 364. 15 Mishna Avot 3:14. “Man” here refers to both Jew and Gentile; see Tiferet Yisrael ad loc. 16 Heschel, 1960, p. 140. 17 Novak, p. 365 and note 58, citing BT Berakhot 54a commenting on Deut. 6:5; BT Hagiga 2a; Tosafot s.v. yerae; and Heschel, 1954, pp. 124–6. In Midrash Hagadol on Gen. 1:27, the term tzelem is attributed to man’s physical being as well as to the soul, so that man’s entire being is a divine endowment. 18 Novak, p. 363.

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and spontaneity.19 Here too, it would follow that those who are less free are less human. Thus Novak sees man’s very presence before God as the aspect of humanity that is God-like. Novak argues that one is present before God not because he is conscious of God, but because God is conscious of him.20 This presence is unaffected by disability, for it consists in the capacity for a relationship with God. Man’s true dignity, his inviolable sanctity, comes from his being capable of being in the presence of God and being called to respond to God’s revelation to him, . . . Since a human person’s existence in its entirety is uniquely present before God, only the absence of breath, the conditio sine qua non of both independent physical life and rational discourse, indicates the “passing away” of that presence. “And the Lord God formed man out of the dust of the earth and He breathed the breath of life into his nostrils and man became a living being” (Gen. 2:7).21 Novak’s understanding is thus an appropriate basis for an inclusive halakhic approach to disability. While intellectual excellence and maximal freedom are admirable human aspirations, they are simply aspects of the human experience and are not, in themselves, the seat of human worth.22 How significant is the concept of “in the image of God” in the halakhic discourse? While the Bible and the Rabbinic teachings assign it an important normative role, it does not appear as frequently in the halakhic discourse over the centuries as one might expect given its centrality in the biblical narrative, though in some modern responsa the concept is being increasingly cited. It has been appealed to with reference to the prohibition against murder, arguments against capital punishment, the precept of procreation, the idea of the dignity of human remains, the advocacy of women’s suffrage, and even in discussion of living wills.23 The imitative relationship to the Creator undoubtedly plays a part in the high value accorded by the tradition to the human experience, despite the pain and suffering that accompany it. Subjective, and indeed, empirical assessment of human experience, could generate doubt as to the idea of intrinsic human worth. This is of special relevance to the disabled and their associates, for whom affirmation of the inherent worth of human life may understandably be a greater challenge than for able-bodied persons.

19 For the view that human freedom and spontaneity are at the heart of man’s identity, see Sforno on Gen. 1:26; Soloveitchik, 1983, p. 136; Hartman, p. 32; and Leibowitz, 1979, p. 74. 20 This reflects an idea found in Mekhilta de-Rabbi Ishmael, Beshalah, Vayisa, 6 (Horowitz ed., p. 175, lines 5–6; Friedman ed., p. 52b; Lauterbach ed., vol. 2, p. 133): “God said to him: wherever you find the mark of man’s feet, there I am before thee.” 21 Ibid., p. 364. 22 See also Heschel, 1972, esp. Chapter 10, “The Sacred Image of Man,” pp. 150–67. 23 See Blidstein.

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This view of human life as inherently precious is reflected throughout Jewish law. Because every human life is construed as sui generis, a world onto itself, one life can never substitute for another. For example, while as a rule commandments can be violated on the basis of the principle “ ‘you shall live by them,’ and not ‘you shall die by them,’”24 this is not so regarding the killing of an innocent person. There can be no argument here about the quality of the lives in question, since human lives are incommensurable.25 The law is utterly clear on the preciousness of every human being. 1.2. Unity of body and soul It is crucial to emphasize that the affirmation of humanity applies to both body and soul. Whatever the form of one’s physical endowments, the body enjoys the same approbation due the whole human entity. Rabbinic Judaism acknowledges man’s character: unlike other created beings, whose totality derives either from heaven or from earth, man’s “soul is from heaven and his body from the earth.”26 This allows man to rise up and fulfil his God-like nature or to fall into mere creaturely, earthly existence.27 Yet this is not a disparagement of the earthly foundations of man’s being. Man’s goal is not to be liberated from his creaturely endowments, only to keep them in line with his heavenly ones through the performance of good deeds and fulfilment of the precepts.28 This affirmation is forcefully expressed in two anecdotes about Hillel: When Hillel went somewhere and was asked, “where are you going?”, he would answer, “I go to perform a mitzva.” “What mitzva, Hillel?” “I am going to answer the call of nature.” “Is this, then, a religious act?” He replied, “Yes, so that the body does not become impaired.” On another occasion they might say to him: “Where are you going, Hillel?” “I go to perform a mitzva.” “What mitzva, Hillel?” “I am going to the bathhouse.” “Is this then a mitzva?” He replied: “Yes, in order to clean the body. Here is proof that this is so: If the officer appointed to cleanse and polish the statues that stand in the royal plazas is given an annual state salary, and furthermore is raised to the status of the realm’s nobility, how much more so is this true of us, who have been created in

24 BT Sanhedrin 74b. 25 Spero, 1985, p. 78. 26 Sifre, Haazinu 306, p. 340. Similarly, BT Hagiga 16a compares human beings to angels and to beasts. Three of the six human capacities (understanding, erect walk, and speaking the sacred language) are shared with the former and three (eating, propagation and defecation) with the latter; in Genesis Rabbah 8:11, dying is added to what is shared with beasts and sight to what is shared with the angels. 27 Genesis Rabbah 8:11. 28 Urbach, 1975, pp. 222–3.

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the divine image and likeness, as it is said: ‘For in the image of God made He man.’ ” (Gen. 9:6) Shammai said: “Let us fulfil our obligations with respect to the body.”29 Shammai, in arguing that it suffices to give the body its minimal due, reveals a somewhat austere attitude to the body. It must be tended but not celebrated. For Hillel, the body is more than a mere container of the soul – it is a gift with which God has endowed man, and expresses His image. This disagreement between Hillel and Shammai points to two possible attitudes with implications for disability issues. If the body is not more than a container for the soul, lacking intrinsic worth, why make much of an effort to maximize its functioning, especially when it is in poor condition? Why invest resources in upgrading the functioning of those whose bodies are deficient? On Hillel’s view, there is joy in the body’s optimal functioning, which it is thus imperative to maximize. Efforts to overcome dysfunction, if at all possible, even at great cost, are justified, indeed, divinely mandated. 1.3. Human dignity In assessing human worth and dignity, two interests are cardinal: the individual’s worth in his own eyes, and each individual’s worth in the eyes of his fellows.30 Human dignity follows from man’s creation in God’s image.31 “Come and hear,” the Talmud announces. “Great is human dignity, since it overrides negative precepts of the Torah.”32 That a pronouncement begins with this formula, “Great is . . .,” indicates that here, more than in an ordinary halakhic directive, the principle is of particular moral and educational import.33 This dictum reinforces Ben Azai’s exhortation not to despise any person, as “there is no one who does not have his hour.”34 All human beings, including those with disabilities, play a role in human affairs.35

29 Avot de-Rabbi Natan (2), 30. A more condensed version in which the first anecdote is omitted appears in Leviticus Rabbah 34:3. This suggests that Shammai might have distinguished between defecation and bathing. One is a biological necessity to which Shammai may concede that it is indeed in the purview of the precepts, whereas bathing pertains to pleasure, and hence is not a case of fulfilling precepts governing care of the body. They are, it must be remembered, not speaking of simple cleansing, but of visiting a Roman bathhouse. 30 See Mishna Sanhedrin 4:5, a complex but edifying treatment of the different perspectives that enter into human dignity. 31 Heschel, 1990, p. 167. 32 Gadol kevod habriyot shedohe lo taase shebatora. BT Berakhot 19b, Menahot 37b, Shabat 81a, Eruvin 41b, Megila 3b. See Blidstein; and Rakover, 1978. 33 Blidstein, p. 131. 34 Mishna Avot 4:3. 35 Maimonides, Commentary on the Mishna, Avot 4:3.

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Human dignity can be conceived both actively and passively. Man may be considered dignified by attribution or by virtue of his achievements. In the first sense, human dignity is acknowledged by not treating anyone (including one’s self) in a demeaning manner. In the active sense, it requires us, as human beings, to make an effort to fulfil our potential. In the halakhic tradition, the concept is indeed used both actively and passively. It may refer to the dignity one has merely by virtue of being human, an aspect independent of social standing.36 Halakhic advocacy of human dignity opposes human debasement of any kind. All are personally responsible for caring for themselves in both private and social contexts, for maintaining pride in themselves as human individuals. On the other hand, in an important sense human dignity is a social category.37 For example, it denotes the consideration extended to the elderly and the sage by virtue of their status.38 This sense of dignity, then, links it to performance of an institutional role. Thus construed, it designates human competence: what we are capable of achieving by actively exercising our intellect. Passivity is, on this interpretation, tantamount to indignity.39 Let me bring an example where considerations of human dignity determined the law in a matter pertaining to disability. R. Moses Isserles ruled on a case involving someone with a chronic kidney problem causing urinary incontinence. The man inquired about his fitness to don phylacteries and recite the Shema prayer, two scriptural precepts fulfilment of which is contingent upon exacting personal hygiene. The medical condition in question could easily have been taken as grounds for exemption from the obligation to fulfil these precepts, or even as prohibitive. R. Moses Isserles nevertheless allows him to don phylacteries and recite the Shema, ruling that the soiling is inadvertent, and stipulating that the man wear a special garment to catch the urine. He argues that it is inconceivable, given the man’s chronic condition, that he be prevented from fulfilling these precepts all his life.40 Further, he ruled that the man may even enter the synagogue, though there are separate grounds for prohibiting this on the basis of the sanctity of the synagogue. For R. Moses Isserles, the claim to human dignity is a weightier consideration, justifying the decision that the man is permitted to enter the

36 It is clear from Code, Laws concerning the Sanhedrin 24:10 that the term kevod habriyot is universal, referring to Jews and others. 37 Soloveitchik, 1974, p. 141, note 14. 38 Code, Laws concerning Robbery and Lost Property 11:13 understands the term “elder” (zaken) to refer to any distinguished elderly person, not necessarily a scholar. This usage follows BT Berakhot 54b referring to Ps. 107:32, “Let them exalt Him also in the assembly of the people and praise Him in the seat of the elders.” Asheri (BT Baba Metzia 82:21) argues that it refers only to scholars; see Lamparonti, Pahad Yitzhak s.v zaken, pt. 2, p. 65a. 39 In this regard, Soloveitchik (1974, pp. 76–7, 79) commenting on Ps. 8:6, cites Nachmanides on Gen. 1:26: “ ‘crowned him with honor and glory’ refers to his intelligent, wise, and technically resourceful striving.” 40 Rema, responsum #98; Blidstein, pp. 166–7.

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synagogue and participate in the life of the worshipping community. To spare him personal humiliation, R. Isserles does not stipulate that he must sit apart from others, though halakhic grounds for such a separation can be found.41 Creation in God’s image grants dignity and endows the human being with special entitlements relative to the rest of the created order. This raises the question of how to navigate between each individual’s claim that for him alone the world was created, and the opposing argument, “if I am only for myself, what am I?” Given the fact of expensive medical technology and costly social services, triage is not just a theoretical issue, yet demanding one’s fair share of these resources assumes empowerment. Awareness of the centrality of the principle of the intrinsic worth of all people may be an effective agent of empowerment. No more and no less than any other person, the disabled individual should have access to achievement-based honor. But in its elemental sense, human dignity is unconditional, and must be granted to all.

2. Obligation as conferring dignity Because Judaism is a commandment-centered religion, the law plays a central role in Jewish life. The law expresses the will of God in great detail. According to the masoretic tradition, there are 613 main precepts that delineate the law, all of which refer to specific religious commands set out in the Bible.42 The term for such a precept is mitzva, or “commandment”; in an extended meaning, it has also come to denote a good deed.43 Through the precepts, articulated by the halakha, the covenant is embodied in the daily lives of the individual, the community and the nation. Even tiresome details of human activity become imbued with a sense of sanctity, of divine-human interaction. In this religious culture, to be obliged to fulfil the precepts is to be part of an ongoing conversation between God and man. Disqualification and even exemption from that conversation are thus unsettling. Observance of the precepts is a measure of standing in the halakhic community. Hence, the degree to which the disabled are obligated by the precepts is a measure of their status and dignity within the community. To assess this, it is necessary to first gain a fuller understanding of the significance of the obligation to observe the commandments. The halakhic culture regards the commandments as a privilege, rather than a burden. The very notion of the precept reflects the high esteem in which man is held by the Almighty, who considers him capable of being approached with demands, of shouldering His will without being overwhelmed.44

41 He relies on prior rulings by R. Israel Isserlein, whose consideration of the psychological component of human dignity is innovative. See Blidstein, p. 167, note 190, for other examples. For comparison, Blidstein ( p. 166, note 188) cites a less liberal ruling in a responsum by R. Hai Gaon concerning whether a male with a genital discharge may enter the synagogue (also in Ginzberg, 1968, vol. 2, p. 38). 42 BT Makot 23b; Pesikta Rabbati 22:3. 43 See Herzog, vol. 1, pp. 53–4. 44 Urbach, 1975, “The Commandments,” p. 315.

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Since many of the precepts enjoin “repair of the world” (tikun olam), man is engaged by God not only as a reliable executor of His will, but also as a competent co-worker in making the world a livable place: “The Lord God took the man, and put him into the garden of Eden to dress it and to keep it. And the Lord God commanded the man” (Gen. 2:15–16).45 Jewish tradition mandates not to accept the world as it is but to transform it. It sees in action, in mastery of the world, an important element of human dignity, and the chief human calling and responsibility.46 Dignified by his power, man may stand before God, whereas the powerless slave is exempted from saying the Shema prayer of allegiance to God because he is not master of his own fate.47 Eve expresses the joy she felt in creating when, upon bearing her first child, she named him Cain: “because I have created man with God.”48 Man is ecstatic when he realizes his creative potential. The precepts are invitations to express this potential in concrete acts. “He who performs a moral act associates himself with God in His creative work,” says the Talmud.49 2.1. Universally-binding commandments The notion of commandment, for the Sages, signifies a structure of laws, accountability and judgment binding on every human being. Both Adam and Noah, the paradigmatic biblical universal persons, are construed in the biblical and Rabbinic traditions as commanded, a heritage that is still binding.50 Ecclesiastes 12:13 ends with the words: “The sum of the matter when all is said and done: Revere God and observe His precepts. For this applies to all mankind.”51 Adam was prohibited by God from eating the fruit of a certain tree. When he failed to obey this command, it was not revoked, but rather, because man was given to weakness, God decided to help him keep the commandment not to eat of the Tree of Life by making a fence around the law, literally. This is the import of the banishment from the

45 Urbach, 1975, p. 326. Observance of the precepts gives rise to a partnership with the Almighty in the works of creation. See Mekhilta de-Rabbi Ishmael, Amalek, Jethro, ii, (Horowitz, p. 196); BT Sanhedrin 99b. Also see the portrayal of “majestic man” in Soloveitchik, 1974, pp. 75–8. 46 I. Greenberg, pp. 128, 131. Ps. 8:6 sees man as “only a little less than God” at least partly because of the dignity he has in being capable of exercising power. 47 Mishna Berakhot 3:3. 48 Gen. 4:2. The new JPS translation reads, “I have gained (kaniti ) a male child with the help of the Lord.” The verb may, however, also be translated, “I have created,” as is clear from the prayer “Maker of heaven and earth” (kone shamayim vaaretz) (Gen. 14:19), in the Sabbath eve liturgy. 49 BT Shabat 10a. 50 Code, Laws concerning Kings and Wars 8:10. 51 Genesis Rabbah 34:8; following Yeshayahu Leibowitz’s interpretation and punctuation (1987, p. 79), which appends the last phrase to the previous statement “observe all His precepts” (verse 13). The new JPS version applies the closing phrase of verse 13 to the following verse: “that God will call every creature to account.”

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Garden (Gen. 3:23). Guardian cherubs with fiery swords were stationed east of the Garden to keep man from any possibility of violating the commandment now that he had been sentenced to mortality. Seeing that man had failed to observe the first commandment concerning the Tree of Knowledge (Gen. 2:17), why did God not rescind it? Why did He not demolish the Tree of Life or change the character of man so that he would not be tempted to violate the law? The experiences of Noah, the second commanded ancestor of mankind, reveal that God did not give up on man as a creature capable of bearing commandments. He imposes more precepts when Noah exits the ark into the beautiful sunlit sky: “. . . shall ye not . . . will I require it . . . whoso sheddeth man’s blood . . . be ye fruitful, and multiply; swarm in the earth and multiply therein” (Gen. 9:4–7). This is one textual anchor for the Rabbinic conception of the seven Noahide Laws.52 R. Johanan attributes the origin of the Noahide Laws to Adam, tracing it through exegesis of Genesis 2:16, which begins, “And the Lord God commanded the man.”53

2.2. Israel, the commanded people Sinai is an occasion for multiplying the number of commandments from seven to 613, 248 positive commands corresponding to the different parts of the body,54 and 365 negative commandments, corresponding to the days of the solar year.55 Israel’s regard for the precepts is evidenced by its imposing upon itself more restrictive edicts than God did.56 When asked to defend His favoritism toward Israel, God explains: Why should I not favor Israel? For I enjoined them in the Torah “and thou shalt eat and be satisfied and bless the Lord thy God” (Deut. 8:10), yet they are so meticulous as [to say grace] for food the size of an olive or of an egg.57 The Men of the Great Assembly directed that numerous such “fences” be erected as a defense against the weakening of the law.58 Perhaps the best testimony

52 BT Sanhedrin 56a–60a, 74b; BT Avoda Zara 2b; Genesis Rabbah; BT Hulin 92a speaks of thirty Noahide Laws; Code, Laws concerning Kings and Wars 9–10. 53 BT Sanhedrin 56b. 54 Mishna Ohalot 1:8; see Preuss, 1911, p. 66, and JT Berakhot 4:4(5). 55 Pesikta de-Rav Kahana (Mandelbaum ed., p. 203, Buber ed., p. 101); Urbach, 1975, p. 343; Chill, 1974, p. xv. 56 BT Eruvin 21b; Urbach, 1975, p. 334. 57 BT Berakhot 20b. 58 Mishna Avot 1:1.

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to the commandments as a source of dignity and meaning is the heroism demonstrated during the Holocaust by Jews who risked their lives in order to observe the precepts, although they were living under conditions that exempted them from obligation.59 It must be emphasized, however, that it is only internally, only from within the Jewish precept-oriented culture, that maximal commandedness is valued, and disqualification from precept observance entails loss of dignity. Within other religious worldviews, commandedness need not play this focal role, its centrality being displaced by a different concept, such as that of grace or election. Note, however, that non-Jews are, of course, free to take on commandedness voluntarily, to choose to observe the precepts. In a culture where such emphasis is placed on the precepts, the import of being included among those obligated to fulfil the precepts is obvious. To the extent that they are exempted or disqualified, the disabled are essentially being marginalized.

2.3. Parity of obligation Exemption from the obligation to carry out a given precept also entails that one cannot discharge the obligation on behalf of another who is so obligated. For example, if one must hear the ram’s horn (shofar) being blown, this duty remains undischarged if the blower is not himself obligated to hear it. By law, the individual rendering the action must be obligated at least to the same degree as the one for whom the act is being carried out: the agent must be of the same legal capacity as the one represented. So, for example, though women are halakhically allowed, even encouraged, on some views, to perform time-specific precepts, from which they are halakhically exempt, they cannot perform them for males who are obligated, since the degree of their obligation is lesser. Note that this distinction is relevant only regarding precepts that devolve as a personal obligation that an individual must actively fulfil, such as Megila reading, prayer, shofar, lulav. Precepts like circumcision are such that, while every male must be circumcised, the obligation to see that the precept is carried out devolves firstly upon the father, then, the community, and only then upon the individual male. Circumcision is thus not a personal obligation of the circumcisee but a religious task that needs doing. Hence, though not recommended, even a woman, minor or one who is uncircumcised (some add even a non-Jew, all these groups

59 According to BT Sanhedrin 74a; codified in Code, Laws concerning the Fundamental Principles of the Torah 5:1–4. A dispensation was even given for transgressing the proscription against apostasy under duress, a precept that ordinarily cannot be violated, in a sermon delivered by R. Nissenbaum to Jews in a concentration camp. He ruled that since the Nazis wanted to destroy all Jewish bodies, “it became the Jew’s duty to save his body, no matter how he did it: escape [or] pretend to be a priest or a nun!” (Rackman, 1986, p. 160).

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being exempt to various degrees), may satisfy the legal requirement, provided they perform the act competently.60 Since the status of their obligation differs from that of the community, though their acts are personally valid, the disabled cannot carry out acts for others. This problem is particularly pronounced because of the principle that one whose obligation to perform an act is only Rabbinic cannot perform the act for one whose obligation is biblical.61 Shofar-blowing The Talmud assesses whether individuals of differing status with respect to obligation to observe the precepts can blow the shofar for others: All [males] are under obligation regarding the blowing of the shofar: priests, Levites and Israelites; proselytes, emancipated slaves, one of indiscernible gender (tumtum), the hermaphrodite (androginos), and one who is half slave and half free. One of indiscernible gender cannot carry out a religious duty either for a fellow tumtum or for anyone else. A hermaphrodite can perform a religious duty for a fellow hermaphrodite by virtue of the male part common to both of them, but not for anyone else. One who is half slave and half free can discharge a religious duty neither for one in the same condition nor for anyone else.62 Even those of doubtful gender are obligated to fulfil the precept, but as regards performing the act for others, one of indeterminate gender is disqualified from acting even for a fellow also of indeterminate gender because the former, the one blowing the shofar, may be a woman, and thus not halakhically obligated, while the latter, for whom the shofar is being blown, may be a male, and thus obligated.63

60 See the biblical example of Zipporah, Moses’ wife, carrying out a circumcision, though she is exempt from any legal obligation to so act (Exod. 4:24–6). Legally, circumcision is a woman’s prerogative, though she is not under personal obligation. See BT Avoda Zara 27a, Menahot 42a; Code, Laws concerning Circumcision 1:1; Kesef Mishne, ad loc. Another illustration is the obligation of Megila on Purim. Despite its time-dependent character, the Talmud obligates women because they were “also involved in that miracle” (BT Megila 4a, Tosafot ad loc. s.v. sheaf; Eruvin 2a; Code, Laws concerning the Megila and Hanuka 1:1). Although this should entail that women can read for men, since both are obligated, some authorities disqualify women from reading on behalf of men because the nature of their obligation is different: men are obligated to read the scroll, women only to hear it read (Tosafot on Megila 4a, s.v. nashim). A woman’s reading for a man thus would not satisfy the man’s obligation to read the scroll. 61 On the significance of the designations “scriptural/biblical” and “Rabbinic,” see Herzog, vol. 1, pp. 2–11. 62 BT Rosh Hashana 29a. 63 The problem arises with respect to each individual and is not a question of how to classify the group as a whole. See Rashi ad loc. s.v. tumtum eino motzi.

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Regarding the hermaphrodite,64 the male side of his identity qualifies him to perform the act for another like him. Whether held to be a male or female, this other person’s degree of obligation will not exceed that of the hermaphrodite performing the act,65 but the hermaphrodite may not perform a precept for an ordinary male, because he may be deemed a female, whose obligation differs. Though theoretical, the bizarre example of one who is half-slave/half-free provides a clear illustration of the parity principle of halakhic obligation.66 Though obligated to hear the shofar, he cannot blow it. The slave side of his identity, exempt as is a woman, cannot perform the act for the free, obligated side of his identity. He is in a halakhic quandary, because he embraces two incompatible statuses. Another male blows the shofar for him.67

Covenantal persons (Bnei Kritut ) R. Isaac Jacob Weiss brings an unusual argument based on the concept of interdependence (arevut) for the position that one who is exempt from a particular precept may still perform it for others.68 He elaborates on the Mordechai’s ruling on why the blind may recite the kiddush for others, despite their scriptural exemption from all the precepts.69 Generally, on the basis of interdependence one can justify discharging an obligatory act for another even after one has personally discharged his own obligation when the individual who performs it is obligated the same way as the one for whom he is acting. Contrasting the status of the deaf-mutes and the blind, on the one hand, and that of women, all of whom are exempt in some way, on the other, R. Weiss argues that even though the former are exempt, they are potentially on the same plane of interdependence as non-disabled persons, since they could theoretically be healed of their disability, and be fully obligated. He takes parity of obligation to mean potential rather than actual parity. This distinguishes the halakhic status of disabled men from that of able-bodied women. The former are “covenantal persons,” and their disqualification on the basis of their disability does not affect their essential covenantal

64 Androginos. 65 Rashi ad loc. s.v. androginos motzi. The doubtful status of the hermaphrodite applies to the entire class of hermaphrodites. Since they have both male and female characteristics, all are either male or female. With regard to one of indiscernible gender, lacking either characteristic, doubt arises on a case by case basis. 66 Such a case is conceivable if one of two partners who jointly own a slave relinquishes ownership of his part. BT Gitin 41a; Code, Laws concerning Slaves 7:4. 67 Rashi ad loc. s.v. mi shehetzyo eved; Code, Laws concerning the Ram’s Horn 2:3. 68 Minhat Yitzhak, 3:54, in an excursus on performing acts for others while discussing the legal ramifications of women and interdependence. 69 Mordechai, 798 (at the end) on BT Megila 2.

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status,70 though he differentiates between the blind, who are Rabbinically charged with the obligation to observe the precepts, and deaf-mutes, who are not.71 Taken together, the Rabbinic obligation, which does not apply to deaf-mutes, and the covenantal status which deaf-mutes and the blind share with the abled, render the blind able to act on behalf of others who are obligated, and even scripturally obligated. Though personally exempt from fulfilling scriptural commands, their covenantal status gives them, on the basis of the interdependence principle, a stake in the religious observances of other Jews. Rabbinic obligation is a factor here since without at least some halakhic obligation, to say that one who is blind can act on behalf of another, in a way he cannot act on his own behalf, would have an absurd ring. The deaf-mute, like the minor, though essentially covenantal, may not act similarly because he, unlike one who is blind, is totally exempt from observing the precepts.72 The possibility of being healed preserves the essential level of obligation necessary, though not sufficient, to render someone capable, via interdependence, of fulfilling mandated precepts for others. Bnei Mitzva A similar analysis of the status of a halakhic act performed by individuals who are totally exempt from observing the precepts is offered by R. Moses Feinstein.73 He argues that since the Torah was given to all Israel, any religious act performed is inherently imbued with “commandedness.” Hence it merits a reward, albeit a lesser reward than that accruing to one who is obligated to perform it. The case of a precept (other than the Noahide precepts) performed by a Gentile is different, he argues; here, the act is devoid of halakhic significance, since the one who carries it out has no obligation to observe the Sinaitic precepts. He differentiates between two types of exemption from obligation to observe the precepts: functional and personal. The former is disqualification due to an inability 70 He adduces this from Tosafot on BT Gitin 22b, s.v. veha. R. Ovadia Yosef accepts this argument (Yabia Omer 3, OH 27), but rejects the idea of using it to accord the blind greater obligation than minors, arguing that it is surer that minors will grow up than that the blind will be healed. The concept of the woman’s qualitatively different interdependence is attributed by Minhat Yitzhak to Rabbenu Asher in his gloss on BT Berakhot 20b. Ultimately, R. Weiss rejects the existence of this alleged disparity between men and women. 71 This reference to the deaf-mute assumes that without hearing, even a speech-abled deaf person is exempt from all verbal precepts; however, this is R. Jose’s opinion only. See Chapter 8 below. 72 R. Joseph Teomim, author of Pri Megadim, and R. Samuel Landau, maintain that the deaf-mute is obligated to fulfil the precepts, but due to his disability cannot execute the acts required. He is, however, allowed to take part in preparatory activities, as I discuss in Chapter 10. R. Teomim considers the deaf-mute “an obliged person” (gavra bar hiyuva). R. Landau disagrees, yet at the same time does not consider his exemption to be “of his person” ( petura degufa), as is a minor’s. He suggests that the deaf-mute is in some way obligated, but introduces no special terminology. His view is like that of R. Weiss on the covenantal status of the blind. 73 Responsa Igrot Moshe, YD 2:7.

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to satisfy the conditions which render the precept obligatory in general, a disqualification that does not point to a flaw in the essential covenantal status of the person, but is due to dysfunction. The latter is disqualification due to a lack of personal covenantal status, so that the exempt individual, however well-intentioned, and however well he might carry them out, has no legal standing to participate in observance of the precepts. This means that even those disabled individuals exempt from all precept-observance are, unlike Gentiles, nonetheless bnei mitzva. 2.4. Observance of precepts by those not obligated Does the tradition value the observance of precepts by those exempt from such observance? As on so many questions relevant to the subject of disability, there are conflicting views on the significance of unsolicited observance. Undertaking observance when one is not obligated is viewed positively by some authorities, negatively by others. Provoluntarism Isaiah seems to have had great compassion for those who felt outside the community due to disability. He has this divine message for eunuchs, who, though not obligated, chose to keep the Sabbath, and though not required to do so by an external covenant, chose to attach themselves to the Lord as if by covenant, loving and serving Him: I will give them . . . a monument and a name better than sons and daughters . . . an everlasting name which shall not be cut off . . . all who keep the Sabbath and do not profane it and who hold fast to My covenant, I will bring to My sacred mount and make them rejoice in My house of prayer . . . for My House shall be called a house of prayer for all peoples (Isa. 56:4–8). Maimonides, who embraces every person, Jew or Gentile, able or disabled, moved to take upon himself the service of the Lord, echoes this accepting attitude: Each and every individual of those who come into the world, whose spirit moves him and whose knowledge gives him understanding to set himself apart in order to stand before the Lord, to serve Him, to worship Him, and to know Him, who walks upright as God has made him do . . . such an individual is consecrated to the Holy of Holies, and his portion and inheritance shall be in the Lord forever and ever.74 74 Code, Laws concerning the Sabbatical Year and the Year of the Jubilee 8:13. Radbaz comments that this follows from Maimonides’ “clear thinking” (miyosher daato usvarato) rather than from particular proof-texts or legal precedents.

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While not equating the importance of voluntary and obligatory observance of the precepts, the provoluntaristic view sees the difference as one of degree. The pivotal teaching of R. Hanina that “greater is one who is commanded and fulfils precepts than one who is not commanded and does so,”75 is illustrated by the example of a Gentile, Dama b. Netina, in connection with the precept of honoring one’s parents.76 The Sages were impressed with the consideration he showed in forgoing great profit so as not to disturb his father’s sleep. Based on his example, R. Hanina argues a fortiori77: If one who is not formally commanded [to honor his parents]78 does so [to such a degree], how much more should one who is commanded and observes the precept [go to such lengths].79 We see here an appreciation for observance of precepts even by those who have not been charged with this duty. The a fortiori argument turns on the fact that the act of one who is commanded is more weighty than that of one who is not, but implies validation of the uncommanded performance. Immediately following this talmudic text it is related that R. Hanina’s teaching caused a certain blind scholar, R. Joseph, to swing from joy to disappointment: Originally, I thought that if anyone would tell me that the law agrees with R. Judah, that a blind person is exempt from all the precepts, I would make a banquet for the Sages, seeing that I am not obliged and yet fulfil them. 75 “Gadol metzuve veose misheeino metzuve veose,” BT Kidushin 31a; and BT Baba Kama 87a. Another version, in BT Baba Kama 38a, and BT Avoda Zara 3a – differs slightly: “even greater” as opposed to “greater,” emphasizing that the difference between the two cases is relative, not absolute. This version also appears in BT Kidushin 31a, when R. Hanina’s opinion is repeated in the story of R. Joseph. I am indebted to Dr. Y. Silman for much of what follows on the status of voluntary vs non-voluntary observance. 76

How far does the honor of parents [extend]? . . . Go forth and see what a certain heathen, by the name of Dama son of Netina, did in Askelon. The Sages sought jewels for the sacred breastplate that would yield a profit of 600,000 [denarii ] . . . but as the key was lying under his father’s pillow, he did not trouble him. The following year the Holy One, blessed be He, gave him his reward. A red heifer was born to his herd [see Num. 19:2]. When the Sages went to him [to buy it], he said to them, ‘I know you, that [even] if I asked you for all the money in the world you would pay me. But I ask of you only the money which I lost through my father’s honor.’ (BT Kidushin 31a)

77 First of the 13 exegetical principles of R. Ishmael, kal vahomer. 78 Exod. 19:11. Honoring one’s father and mother is not one of the Noahide commandments. 79 The Soncino translation follows Rashi (ad loc. s.v. ma mi ): “does so is thus [rewarded ], how much more so [will be rewarded] one who is commanded and observes the precept.” Urbach (1975, p. 325) reads it this way too. I believe that my translation is more correct, however, seeing as the question to which this anecdote is an answer, “How far does honoring parents extend?”, is about obligation, not reward. The argument is that if Dama b. Netina went to such lengths to honor his father, how much more so should a Jew, who is obligated to do so.

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Having originally thought, as common sense dictates, that volunteer commitment is more exemplary, he celebrated the ruling of R. Judah exempting the blind of all obligation,80 as this provided an opportunity for voluntary observance.81 But his joy was short-lived: Now, however, that I have heard R. Hanina’s dictum, that he who is commanded and fulfils [the command] is greater than he who fulfils though not commanded, on the contrary, should someone tell me that the law is not in accordance with R. Judah, I would make a banquet for the Sages.82 While more value is ascribed to observance that is mandated, voluntary commitment to observance is clearly valued as well. Though encouraging, this spirit is not always echoed in the legal literature, and is variously reinforced, diluted, qualified, explained away and simply disregarded. Antivoluntarism In contrast to this provoluntarism is the teaching of Hezekiah in the Jerusalem Talmud, that “whoever is exempt from something and [nonetheless] observes it, is considered a fool.”83 On this view, if God has not specifically charged someone with the obligation to observe the precepts, this should not be taken as mere exemption, with the option of undertaking observance voluntarily, but rather as a kind of implicit prohibition: what is not commanded is forbidden. To approach God religiously without being specifically instructed to do so is, if not blasphemous, simply foolish. “Ye shall not add unto the word which I command you, neither shall ye diminish from it” (Deut. 4:2). The allocation of religious obligation follows a divine economy that is carefully designed so that it is not interfered with by good intentions. This attitude esteems strict adherence to the well-defined will of God, revealed in the written and the oral Law.84 Rationales for favoring obligatory observance The different views of R. Hanina and Hezekiah on the voluntary observance of the precepts seem to highlight the conflict between two virtues, that of fulfilling one’s duty and that of voluntarily taking on responsibility. Modern sensibilities would seem to favor the latter, in line with the initial intuition of the blind

80 See Chapter 6. 81 R. Joseph is emphasizing his joy at being able to freely choose observance of God’s revealed precepts, but not arguing for adopting values autonomously. See Urbach, 1975, p. 325. 82 BT Kidushin 31a, and see BT Baba Kama 87a. 83 JT Berakhot 2:9. 84 Deut. 17:11; see Sifre Deut. ad loc.

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scholar, R. Joseph, when he thought of his disability as an advantage. R. Nissim of Gerondi ponders this very question: should not Israel receive greater reward for that undertaken voluntarily than for that which is commanded, which they must do despite themselves?85 How, then, are we to explain the popularity of R. Hanina’s view, namely, that self-imposed observance is less valuable than imposed observance, and of Hezekiah’s denigration of voluntary observance? The chief argument for favoring mandated observance over voluntary observance has to do with motivation, primarily motivation of the ordinary individual addressed by the law. Much as it admires the exceptional individual capable of self-initiated striving for spiritual fulfilment, Judaism is concerned with shaping a community into “a holy people,” and thus focuses on the features of spiritual discipline relevant to the uninspired majority. It addresses those incapable of “being constantly in that high state of tension requisite to action intentionally and consciously performed for its own sake.”86 Rather than emphasizing “ecstatic, unusual episodes of one’s spiritual life,” it channels spirituality through the precepts, “norms for this humdrum existence, the real and constant reality of man,” attempting to “establish the religious act, even in its more sublime manifestations, as a fixed pattern of fulfilled obligation.”87 To present the precepts as better not observed than observed only out of a sense of obligation would encourage those incapable of self-motivation to renounce observance altogether.88 Further, some argue that those who are obligated are likely to be consistent in observance of the precepts, even when they are otherwise inclined, because it is religious duty and not an option to act upon if they are moved to do so.89 In religious life, reliability and regularity are valued over spontaneity, though an unusual activity may be accompanied by more enthusiasm.90 The individual’s overcoming of his own resistance or lethargy to dutifully observe the commandments is, then, the basis for valuing his observance more highly than that of the willing volunteer. 2.5. Two views of the precepts These opposed views on the significance of voluntarism can be explained by the different metaphysical premises regarding the precepts on which they rest. On the one hand, God’s addressing man via commandment can be seen as expressing the

85 86 87 88 89

Derashot Haran, no. 7, p. 116. Urbach, 1975, p. 398. Leibowitz, 1987, pp. 68, 69. Urbach, loc. cit. Tosafot on BT Avoda Zara 3a, s.v. gadol; Ritba, Hidushei Haritba on BT Kidushin 31a, s.v. deamar R. Hanina; and Derashot Haran no. 7, p. 16; cf. Tosafot on Kidushin 31a, s.v. gadol hametzuve; see Meiri ad loc., and Sefer Abudraham Hashalem, p. 27. 90 Mishna Horayot 3:1, BT Horayot 12b. “What occurs more regularly takes precedence” (kol hatadir meihaveiro kodem et haveiro).

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inherent meaningfulness of the commandments. It can, however, also be construed as expressing divine arbitrariness – God’s inscrutable will. I will refer to the former as the teleological account of the precepts, and the latter as the divine dictate account.91 The teleological account On this view, the precepts have content that is inherently meaningful in the created reality and are not simply divine dictates. Some divine objective is being served by observance of the precepts. From this perspective, the distinction between one who is obligated and one whose observance is voluntary is irrelevant – whoever actualizes God’s objectives is acting virtuously. This attitude has numerous legal implications. Consider, for example, the question of the recitation of benedictions over voluntary observances. Rabbenu Tam, evincing a positive attitude toward the religious performance of the nonobligated, rules that this is appropriate. He infers from R. Joseph’s initial joy at not being commanded that those who, like women and slaves, are exempt from Rabbinic time-specific precepts, may nonetheless recite benedictions over the acts in question without fear that they are violating the injunction against uttering God’s name in vain (Exod. 20:7) by reciting a gratuitous benediction.92 Implicit in this ruling is the idea that the religious activity in question is of inherent value. This view has appeal for those who, like the disabled, are excluded or marginalized, allowing their inclusion in religious activity and responsibility through voluntary observance. The divine dictate account of the precepts How are we to understand the teaching of Hezekiah, which appears to categorically negate the value of uncommanded observance? It seems to be based on the

91 There is little scholarly agreement on the terminology for these two metaphysical outlooks. What Silman refers to as the “ontological dimension” of the precepts is termed “teleological” by Rackman, 1961. 92 Tosafot on Kidushin 31a, s.v. delo mifkedina veavdina. If the benediction served no positive religious end, it would be prohibited as a superfluous benediction. Were recitation of such a benediction prohibited, how could R. Joseph be joyous at being a volunteer, since he would be unable to recite the benedictions? Also see Rabbenu Nissim’s ruling in Hidushei Haran on BT Rosh Hashana 33a, s.v. veein eilu raayot. In ruling thus, R. Nissim seems to contradict the plain meaning of the text: “But the baraita says: neither women nor children are prevented from sounding the ram’s horn on the festival day . . . this is the opinion of R. Simon.” Now the sounding of the ram’s horn on Rosh Hashana is a time-specific precept from which women are exempt. “Women are not prevented,” implies that it is preferred that they do not perform the act, but it is grudgingly conceded that if they do, it will be tolerated. R. Nissim overrides this and insists that they may opt to perform this act by right ab initio, and not by sufferance. Silman, p. 187, adds that it may be preferable that they do so.

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idea that the significance of the precept lies only in its being commanded by God, and is not due to any intrinsic worth the precept might have. Since only its theonomic dimension endows it with religious value, it is so endowed only when performed by one who has been commanded to perform it.93 For someone who has not been charged with observance to carry out the precept smacks of intrusion, arrogance, or at best, irrelevance. Responsiveness by the commanded demonstrates subservience to God, a readiness to bend one’s will to the divine will.94 One cannot unilaterally decide what it is that God wants, nor of whom He desires it.95 The harshest of those who uphold this account see religious voluntarism as negative, as actually spoiling the divine scheme by unwarranted interference. God is not pleased with the unsolicited religious act, so instead of being rewarded, the volunteer should be punished.96 Those who uphold this view even call for intervening when uncommanded actions are performed voluntarily.97 And of course, they maintain that one who observes without obligation should not recite a blessing, on the grounds that he cannot with integrity say, “who commanded us.”98 The more moderate view simply discourages the volunteer. R. Yomtov of Seville concedes that the Talmud acknowledges that one who keeps a precept voluntarily is rewarded for his action, though less than one commanded to do so. However, he explains that the reward is for acting “out of the goodness of his heart and out of piety.” The individual in question is rewarded for the motive alone, and not for the precept observance, since from the latter perspective nothing has been achieved.99 Since “the ways of the Torah are pleasantness and her paths are peace,” it would be unseemly for God not to take note of good

93 See Urbach, 1975, pp. 315, 323. Silman, p. 196, offers an alternative reading of R. Hanina in light of Hezekiah’s declaration. 94 Mishna Avot 2:4. 95 Tosafot Tukh on BT Kidushin 31a, s.v. gadol, cited in Silman, p. 196. 96 R. Haim Joseph David Azoulay, Petah Einayim, ad loc. s.v. rabenu. 97 See the case of Jonah’s wife, who went on pilgrimage to Jerusalem despite exemption from the precept of “appearing before the Lord God” (reiya) (Deut. 16:16); and the story of Mikhal bat Kushi who put on phylacteries, a time-specific precept from which women are exempt. The opinion referred to is that of R. Hezekiah in the name of R. Abbahu, JT Berakhot 2:3 (4:3). Silman, p. 200, notes that two different Hezekiahs are cited in the Jerusalem Talmud as taking a negative position on uncommanded observance of the precepts. See BT Eruvin 96b on women blowing the shofar. 98 This argument was put forward by Semag, positive commandment #42, and later by R. Elijah b. Solomon of Vilna, commenting on Shulhan Arukh OH 17:5. See Silman, p. 198. 99 Silman, p. 189. Leibowitz, 1992, p. 128, presses this point further, arguing that were the precepts intrinsically worthwhile, “then deterring women from observing them would be discriminatory. Conversely, women’s performance of these acts of their own accord – even if their sincere intention is to do so for the sake of God, and even if this is accepted throughout the entire religious community – would be religiously pointless, and would achieve nothing by way of bringing women closer to the life of Torah.”

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intentions.100 On this view, then, one should not encourage someone exempt from observing a precept to undertake its observance, even if one is not required to actively oppose the initiative.

Bridging the gap Many attempts have been made to harmonize the two attitudes to voluntary observance found in the sources. Generally, Hezekiah’s objection to non-obligatory observance is handled by interpreting it as germane only to certain kinds of situations. Nachmanides takes it to refer to actions not commanded of anyone.101 It is only with regard to such universally non-obligatory acts that Hezekiah should be understood to have maintained that anyone who observes them is foolish. Since God has revealed no preference for such acts, as evidenced by the fact of no one’s having been commanded to observe them, it would be presumptuous to expend effort on implementing them as if they were religiously worthwhile. However, Hezekiah should not be taken as censuring the voluntary undertaking of commanded precepts that were only imposed on a segment of the population.102 By construing Hezekiah’s view in this way, the halakhic obstacle to voluntary observance of the precepts by those individuals who are legally exempt from such observance is eliminated, and the worth of such gratuitous observance acknowledged.

3. Responsibility and interdependence The obligation to observe the precepts is strongly linked to the assumption of responsibility, especially because the commitment to observance is collective in nature. To be responsible means to care about each individual’s integration into one’s society. The significance of responsibility goes well beyond even the collective undertaking of precept-observance, however, as taking responsibility is a fundamental value mediating the tradition and its transmission.103 Only one who is responsible can be counted on to implement and foster the tradition and its ethical imperatives. Accepting responsibility is thus closely linked to awareness of interdependence. Responsibility permeates the tradition, providing a framework for other values within the system, and acting as an important constraint on the creative interpretation of these values.104

100 Silman, p. 189; Hidushei Haritba on Kidushin 31a. 101 Hidushei Haramban ad loc., cited in Silman, p. 189. 102 Meiri on BT Baba Kama 87a, cited by Silman, p. 199, similarly co-opts Hezekiah in support of the more inclusive view. 103 See Berkowitz, 1985. 104 In these comments on responsibility I have adopted much from the writings of Hartman, Berkowitz, and Bat Adam (Rosenzweig).

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This may appear to run counter to the idea that religion is a vehicle for displacing responsibility onto the Deity: quietism, in fostering dependence upon heaven, is often considered the essence of the religious, as opposed to the secular, approach to life. This kind of religious outlook seeks “undeserved” compassion and “grace” from an inexplicable divine generosity. Soloveitchik distinguishes between quietism and faith in God’s charity, arguing against quietism, the extreme form of which exempts man from attending to his needs and lets him wait in “holy idleness and indifference for God’s intervention.” Rather, “man must first use his own skill and try to help himself as much as possible. Then, and only then, man may find repose and quietude in God.”105 On this quietistic model, disability, to the extent that it renders its sufferer the quintessence of passive humankind awaiting redemption, seems an ideal vehicle for achieving saintliness. Any attempt to maximize the status and responsibility of the disabled within the parameters of Jewish law, however, will require an activist orientation. And in fact, activism is an essential premise of halakhic life. Humble acceptance of what is beyond one’s capacity to alter, what Soloveichik calls “repose,” is legitimate only after one has done his utmost to restore whatever is in need of moral, spiritual, or social repair. The foundation of moral responsibility is the possibility of making moral choices. Taking responsibility for these choices and their ramifications is an aspect of the mandate imposed by the law on the covenantal community. It entails caring for others, sharing the pain of the less advantaged, and awareness of the magnitude of human interdependence. Expanding the opportunities for each member of the community to be responsible for his environment through the exercise of his own abilities follows from the Rabbinic understanding of the human being as a social creature, involved with those around him and responsive to their influence. Taking responsibility is not merely an option in taste or culture, but touches on the essence of being human. Commenting mournfully on bad fortune, Scripture asks: “Is it not at the word of the Most High that weal and woe befall?” (Lam. 3:38). The midrash reverses the plain meaning and reads it declaratively, “It is not at the word of the Most High that weal and woe befall!” and concludes: “By itself does evil come upon the doers of evil; and good come upon the doers of good!”106 The underlying premise is that there is lawfulness in reality,107 a linkage between action and fate, based on the principle of man’s responsibility for his destiny.108 Freedom is not freedom from external constraints, but freedom in relating to these constraints.

105 1974, p. 131, notes 43, 44. 106 Deut. Rabbah 4:3. Syntactically, Hebrew allows both readings; the context supports the first reading. By taking the sentence out of context, the midrash arrives at the second, a common hermeneutic ploy. 107 Maimonides emphasizes the talmudic dictum that “the world follows its normal course” (BT Avoda Zara 54b), Code, Laws concerning Kings and Wars 12:1. 108 Bat Adam, 1978, p. 17.

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The concept of interdependence means that every individual Jew acts as a guarantor for every other Jew’s fulfilment of his covenantal obligations: all those who stood at Sinai backed each other’s pledge of “We will do” (Exod. 19:8).109 Interdependence implies being held responsible for the misdeeds of others. It is reflected in the fact that liability is borne by those who are in a position to oppose immorality, yet do not – it is as if they themselves have acted immorally.110 3.1. Solidarity with the sufferer It is related that R. Judah the Prince suffered from a severe inflammation of the gums, and from kidney stones, as punishment for callousness, for lack of empathy with a calf on the way to slaughter. The calf beseeched R. Judah to save him, but R. Judah demurred: “What can I do, you were created for this!”111 Undeniably, much of the suffering in the world is beyond man’s ability to alleviate. Unfortunately, the response to this fact is too often indifference and rejection, perhaps a defense against the frustration of powerlessness. Victims are thus abandoned to suffer alone. The challenge to the righteous is to stand by the sufferer, so that he need not face his tribulation alone. In a sequel, which shows that R. Judah learned his lesson, he admonishes someone who is about to destroy a mouse’s lair: “Leave it. It is written, ‘His mercy is upon all His works’ (Ps. 145:9).” The Talmud comments: “Since he had compassion, compassion was shown to him [i.e., his pains ceased].”112 An anecdote about R. Nahum Ish Gamzu is even more dramatic in depicting the tragic consequences of failure to empathize with a sufferer. While bringing presents to his father-in-law, R. Nahum was approached by a leper begging for charity. R. Nahum put him off until finishing his errand. Alas, when he returned, he found the man dead. He was deeply remorseful: “I fell on his face and said: My eyes that did not have compassion on your eyes – may they close. My hands that did not have compassion on your hands – may they be cut off . . . May my entire body become leprous!”113 Shaken to depths of his soul at his failure to empathize, he sentenced himself to suffering.114 Empathizing with the suffering of others requires identification with individuals and the community. The sources describe a number of cases of heroic identification with sufferers, for example, R. Joshua b. Levi and R. Zera. The former maintained contact with sufferers from a skin disease so contagious that the Sages

109 110 111 112

See BT Sota 37b. BT Shabat 54b; Bat Adam, p. 122. BT Baba Metzia 85a; JT Kilayim 32:2, Ketubot 35:1; Genesis Rabbah 33:3; Bat Adam, p. 192. BT Baba Metzia 85a; JT Kilayim 32:2; JT Ketubot 35:1; Gen. Rabbah 33:3; Bat Adam, p. 192. 113 BT Taanit 21a; JT Shekalim 45:2. 114 Bat Adam, pp. 92–3. I discuss Nahum Gamzu further in the next chapter.

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prohibited those with that condition from cohabiting. While other Sages of that generation, R. Johanan, R. Eleazar, R. Ami and R. Asi, were careful to avoid contact with these individuals, R. Joshua sat in their midst and taught them.115 Similarly, R. Zera, though lame and a dwarf, was not afraid to associate with marginal people in his neighborhood, in order to rehabilitate them. The Talmud relates that when he died, they said: “Till now, this dwarf on crutches would ask for compassion for us. Who will pray for us now?” They then “searched in their hearts and repented.”116 The laws of charity, discussed in Chapter 3, are a prime expression of the need to act for others. They are first addressed to the individual. For example, the injunction, “Thou shalt surely open thy hand unto thy poor and needy brother, in thy land” (Deut. 15:11) is couched in the singular.117 We are admonished to see the needy one as a brother, as family, arousing empathy for his plight. Cain tried to avoid responsibility for his brother, “Am I my brother’s keeper?” (Gen. 4:9) and was indicted. The moral imperative of taking responsibility for the welfare of others is elegantly expressed in R. Eleazar’s interpretation of the prophet Micah’s statement, “What is good; and what does the Lord require of thee: only to do justly, and to love mercy, and to walk humbly with thy God” (Micah 6:8). R. Eleazar interprets “love mercy” as referring to acts of loving-kindness, and “walk humbly with thy God” as referring to attending funerals and dowering brides.118 He sees the individual’s personal involvement in the low and high moments of others’ lives as walking with God.

3.2. Suffering and guilt Despite the formal teachings on empathy for the suffering, there is a popular belief that suffering must somehow be deserved. This belief may give rise to reluctance to extend succor to others, as if it were an invasion of divine authority. This attitude is evinced by Job’s friends and comforters,119 and is also evident in a fictional midrash. A Gentile king once asked R. Joshua b. Hanania: “How can one reconcile divine justice with the fact that God causes sinless and guiltless people to suffer, such as those born with disabilities, the blind, lame, deaf, and dumb? They are without sin. Is this not wrong?” To this R. Joshua replies: “Indeed the righteous among them He caused to suffer so as to increase their

115 JT Ketubot 31:4; BT Ketubot 77b; Bat Adam, p. 94. 116 BT Sanhedrin 37a; Bat Adam, p. 227. 117 Essentially, the entire passage (7–12) in Deut. 15, which deals with the responsibility to be charitable, addresses the individual, as does Lev. 25:25–55. 118 BT Suka 49b. 119 Job 4:7. It is also voiced in the last verse of the Grace after Meals: “I was a young man and have become old, but never have I seen a righteous person abandoned and his children seeking bread.” See Bat Adam, p. 81.

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reward in the world to come.”120 R. Joshua adds that, in most cases, the suffering of these supposed “innocents” is deserved, illustrating his claim with a case of a blind man who was openly immoral.121 In an even more callous example, another Sage, R. Simon b. Yochai, seeing someone bent over in pain cursing God, admonishes him: “Idiot. Instead of begging (God) for compassion, you engage in blasphemy?”122 Defense of God’s honor blinded him to the pain of his fellow. The Talmud’s discomfort with this popular belief that suffering entails guilt can be seen in an attempt to neutralize it by drawing a distinction between congenital disability, where no guilt is presumed, and acquired disability, where the presumption is condoned.123 R. Joshua b. Levi opposes the presumption even in the latter case.124 Disavowal of this presumption of guilt, and affirmation of interdependence, is reflected in the view that future generations are held accountable in advance as guarantors of the past generation’s commitments and deeds.125 Meiri and R. Ovadia Yosef suggest that statements that appear to link suffering to retribution are not intended to be understood literally.126 Still, for those who do take these teachings literally, the result is validation of the primitive assumption that sufferers must have sinned.127 It should be emphasized that the Talmud admonishes us not to confuse the morally justifiable process of judging oneself in the wake of personal suffering and finding oneself guilty of sin, with the morally reprehensible act of judging others: If someone suffers, if someone is struck down with diseases, or if someone buries his children, do not speak to him as Job’s friends did: ‘Remember, I pray thee, who ever perished, being innocent? Or where were the upright cut off ?’ ( Job 4:7)128 To search for guilt in one’s own experience may reflect piety. To judge others, especially when they suffer, is a callous abuse of the capacity for moral assessment.

120 Bet Hamidrash, 5:132. 121 Bat Adam, p. 79. She notes that the response described in the anecdote is not in keeping with R. Joshua’s compassionate personality. 122 Avot de-Rabbi Natan (1), p. 130. See Bat Adam, p. 91. 123 BT Berakhot 13b. 124 BT Berakhot 48b; Bat Adam, p. 80. 125 Song of Songs Rabbah 1:24; Tanhuma Vayigash 1; Bat Adam, p. 126. 126 See the coming chapter. Gertel, 1976, p. 75, understands the Sages as reminding us that the Disapora “must ever be a source of pedagogical guilt. So too with our personal catastrophes.” 127 Bat Adam, pp. 82–3. 128 BT Baba Metzia 48b; and see Pesikta Rabbati 150:2.

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3.3. Empathy and comforting Empathy with the sick and disabled is said to relieve the sufferer of some of his pain, provided the empathizer “really loves him as himself.”129 A visit to one who is sick by an empathetic caller is said to alleviate one sixtieth of the patient’s illness.130 The Talmud declares that people need the support of others, their presence and solidarity, to escape the “prison” of their suffering: “Give me your hand,” said R. Johanan to his ailing friend. “He gave him his hand and helped him rise.”131 The discourses that may successfully comfort others in distress, often do not work on oneself, as the ailing R. Hanina explained to R. Johanan when he turned to him for succor.132 External comfort, the solidarity of another, is required. It is hard to know what will help comfort those in distress: is suffering a constructive experience to be welcomed and even celebrated retroactively? Or should it be seen as an unfortunate tragedy one would be better off without, but which one must endure? The first view is associated with R. Akiba.133 On this view, one might welcome suffering as an indicator of worthiness in God’s eyes. A person who is spared suffering, then, should bemoan his lot, because he is denied the opportunity to attest to his commitment.134 The second view is associated with R. Johanan: “I want neither the suffering nor its reward.”135 3.4. Disability and responsibility Maimonides and Nachmanides identify different events as formative in the nation’s consciousness: Maimonides emphasizes the centrality of Sinai, Nachmanides that of the exodus from Egypt.136 Sinai signifies man as a covenantal partner, whereas Exodus signifies man as a grateful but passive recipient of God’s largesse. These two perspectives, reflective of two different religious worldviews, are expressed in differing views on medical intervention, differing understandings of the relationship between the natural and the supernatural, and different conceptions of the import of the precepts. One sees man as charged with becoming an increasingly active participant, the other sees him as charged with ever greater obedience. On this view, initiative may border on heresy.

129 130 131 132 133 134 135

Lev. Rabbah 34:1; Bat Adam, p. 90. BT Baba Metzia 30b; Nida 39b; Lev. Rabbah 34:1; Bat Adam, p. 91. BT Berakhot 28b. Songs Rabbah 2:34; Bat Adam, p. 121. “Beloved is suffering.” See Sifre Deut. 32; Mekhilta, Bahodesh 10:239; Tanhuma Yitro 16. Gen. 22 is a central proof-text for suffering as testimony to commitment. Song of Songs Rabbah 2:34; he rejected the comfort of “beloved is suffering” when his ten sons died, BT Berakhot 5a-b; Bat Adam, p. 120. For a different understanding of R. Johanan’s view see Petuchowski and Fleischer, 1981, esp. p. 38. See also R. Akiba’s allegory (BT Semakhot 8) of the king’s four sons: when punished, one remained silent; another protested; a third pleaded for mercy; and the fourth said to his father, “Punish me (even more).” 136 Hartman, pp. 229–31.

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The former theology can embrace a perspective, such as my own, that emphasizes the primacy of interdependence and mutual responsibility. Every Jew is seen as a guarantor of every other Jew’s commitment to the covenant. Hence, he has a stake in the outcome of his co-religionist’s participation in the covenant: what each one does ultimately affects all. The primary channel for expressing this responsibility is empathy for suffering individuals or stricken communities, in both directions: sometimes, it is the individual who must identify with a community in difficult circumstances; at other times, it is the community that must bend toward the individual, and by empathizing, in some way share the individual’s travail. Taking responsibility involves not only bearing it oneself, but also catalyzing others to feel a sense of involvement, to galvanize them to active participation. To distance oneself from others, whether individuals or the community, is to disregard a fundamental aspect of the halakhic culture. Bolstering the disabled individual’s freedom to take responsibility is a way of giving him dignity in a culture where dignity is a function of this capacity. Can it ever be justifiable, on compassionate grounds, to demand less? Can it be fair not to enable any member of society to maximize his potential just because including him would involve greater expenditure and special social efforts than exempting him? It is within the context of the collective taking-on of the covenant that the community must address the fact that a segment of the population – the disabled – is marginalized. Responsibility imposes upon others the mandate of assisting the disabled to realize their potential, without at the same time diminishing their self-esteem, a difficult task given the asymmetrical benefactor/beneficiary relationship. In the coming chapters, we will explore the degree to which the Aggadic and halakhic literature addresses this mandate.

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One of the greatest fears of the disabled and infirm is fear of abandonment and isolation, a fear that finds liturgical expression in the pre-Yom Kippur penitential prayer, “Our Father, our King, when our strength is gone, we beseech Thee not to abandon us!” The non-disabled, too, experience fear in response to disability. Encounters with disability may evoke an array of negative responses: revulsion, curiosity, rejection, ridicule, fear, anxiety. To be able to live up to the moral imperatives of nurturing dignity and interdependence, respecting the God-likeness of every human being, and empathizing with those not endowed quite like us, means confronting these feelings. Sometimes, these fears are concealed by the pretence that we are “perfect,” and impervious to the disability encountered in the other. The result is the creation of a false self-image as well as distorted perceptions of others.1 If left unchecked, such fears may lead to a distancing from the “imperfect” disabled. This chapter on extra-halakhic sources will address the psycho-social nuances of the biblical and Aggadic texts on disability and responses to it. The tradition records the reactions of some rather exceptional people to disability and physical anomaly. The material is divided into four categories, all of which evidence the ambivalence regarding the disabled that we have already noted: disability as a perennial feature of mankind; rejection, acceptance, and ambivalence; the theology of disability; and morale and hope in the face of disability.

1 Murphy, pp. 116–17.

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1. Disability as perennial If immortality is perfection,2 then mortality, the concept of which is introduced in Genesis 2:17, can be seen as a congenital disability of the human race, a primal, universal disability.3 Rab and R. Eleazar asserted that “when man sinned, the Holy One, blessed be He, diminished him.”4 The infliction of the ultimate disability, death, is punishment for the failure of self-restraint with regard to the only restriction God placed upon the original couple, for disregarding the limitation that God, as Creator, and owner of the Garden, placed upon its wardens (Gen. 2:15). Death imposed as a basic and permanent disability upon humankind is one reading of the verse “for on the day that thou eatest thereof, thou shalt surely die.” For this transgression, Adam will not only need to earn his bread by the sweat of his brow but will, after this effort, “return unto the ground” (Gen. 3:19). From this perspective, however exquisite any particular human being may seem, he remains a constitutively disabled creature whose existence is but temporary. The gradual deterioration of different functions – vision, hearing, sexual vigor, reflexes, memory, etc., reveals that man, though divinely manufactured, is inherently obsolescent. This paradigmatic perception of mortality reinforces the view of disability as divine punishment for sin, the shame of which contributes to avoidance of encounters with disability, recalling the attempts of Adam (Gen. 3:8) and Cain (Gen. 4:9) to make themselves invisible out of shame at having sinned. Yet the Bible affirms man’s worthiness, despite this generic flaw, of lofty moral achievement. Noah is described as a paragon of righteousness, as one who is

2 Astor, p. 25, cites M. Siegel in suggesting that “in so many traditions, the hero is the one – male or female – who is robust, totally healthy (in all respects), quite ‘unmarred,’ thus treading upon the heels of the Divine realm.” The myth of a “primordial time without blame or disease,” often attributes the flawed human condition “to a moral error committed by man himself ” (Grmek, 1989, pp. 4–6). He cites Hesiod as a prime example. A well-known version has Pandora, presented as a gift by the Olympian gods to the human race, bringing a deadly dowry of disease. In the Jewish sources, the idea of original aesthetic perfection is expressed in R. Simon b. Menasia’s dictum, quoted by R. Levi: “The apple of the heel of the first man outshone the disk of the sun” (Pesikta de-Rav Kahana, Mandelbaum edition, p. 66). 3 Gen. 2:17; 3:19. Nachmanides on Gen. 3:22, suggests that Adam was originally meant to be immortal. This view is upheld by R. Judah in Leviticus Rabbah, Emor, 27:4; Ecclestiastes Rabbah 3:15; Tanhuma, Buber edition, Emor, section 12. Moshe Greenberg notes that banishment from the Garden prevents man from attaining immortality, by denying him access to the Tree of Life. Without sin, eternal life would have been possible (1991, p. 124). Urbach suggests that the Tree of Life and the Tree of Knowledge in the Garden work against each other, the former vitalizing, the latter enervating (1975, p. 216). 4 BT Hagiga 12a, Sanhedrin 38b. See BT Eruvin 5a for R. Jose’s and Resh Lakish’s view that this cycle recurs at Sinai; had Israel not sinned after Sinai, eternal life might have been its lot.

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blameless (tamim). “Noah walked with God” (Gen. 6:9) is a high accolade for an existentially flawed being. The attitude of the Bible is that man is capable of transcending his infirmity if he realizes his moral potential.5 God, angered by the failure of humankind to overcome evil, destroys the world with a flood, but sustains the hope that man can yet realize his moral potential. He therefore charges the survivors with commandments for living in the renewed world (Gen. 9:1–7), reaffirming the worth of man after his tragic fall by emphasizing that he is fashioned in the divine image (Gen. 9:6), a trait not nullified by his mortality, or even by the moral offense that almost led to the destruction of the world. God acquiesces in the world’s being populated by this race of infirm creatures, charging man: “be ye fruitful, and multiply; swarm in the earth, and multiply therein” (Gen. 9:7). Just as man is not dismissed as a responsible agent because of his mortality, so he should not be divested of responsibility due to other, less universal infirmities. Disability should not automatically exempt man from moral responsibility, though it may legitimately constitute grounds for mitigating his punishment. God limits the severity of punishment for continued transgression after the flood – “I will not again curse the ground any more for man’s sake; for the imagination of man’s heart is evil from his youth” (Gen. 8:21) – but grants no absolute exemption from responsibility.6 This is vividly illustrated in the parable of the blind and lame watchmen adduced by R. Judah the Prince in his discussion with Antoninus to prove that the body and soul are an organic unity: To what may this be compared? To a human king who owned a beautiful orchard that contained splendid figs. Now he appointed two watchmen, one lame and the other blind. One day the lame man said to the blind, “I see beautiful figs in the orchard. Come and take me upon your shoulder that we may procure and eat them. So the lame man bestrode the blind one, procured them, and they ate. Some time after, the owner of the orchard came and inquired of them, “Where are those beautiful figs?” The lame man replied, “Have I then feet to walk with?” The blind man replied, “Have I then eyes to see with?” What did he (the owner) do? He placed the lame man upon the blind and judged them together.7

5 See Hartman, chapter 11 “The Celebration of Finitude,” pp. 256–77, and Soloveitchik, 1974. 6 Contrast this with Gen. 6:5, wherein God decides to hold man liable because “every imagination of the thoughts of his heart was only evil continually.” The same perception of man’s potential for devising evil initially serves as grounds for punishment, but later, as grounds for leniency. Hartman, p. 26, explains the change as due to a process of “divine education.” Note that where the fact of imagining evil justifies total blameworthiness (Gen. 6:5), it is the explanation for this fact, its origin in “his youth,” that diminishes blameworthiness (Gen. 8:21). See Rashi ad loc. 7 BT Sanhedrin 91a–b. Also Tanhuma, Buber edition, Vayikra 12; Leviticus Rabbah 4 (Vilna and Margaliot editions). See Wallach, 1943, p. 333, cited in Urbach, 1985, p. 786, note 23.

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The blind man and his lame fellow seek to evade responsibility, but are outwitted; the disabled are not, merely due to their disability, absolved of all responsibility.8 In another midrash, Joseph is not intimidated by Potiphar’s wife’s threat that she will blind him if he does not yield to her entreaties. His defense, “the Lord openeth the eyes of the blind” (Ps. 146:8) helps him maintain his moral resolve; fear of disability does not release him from moral responsibility.9 The Bible is replete with examples of leadership despite disability. Moses the lawgiver had a speech impediment, Samson, though lame, was a paragon of physical prowess, and Balaam, the Gentile prophet, was one-eyed and lame; all were leaders. It is striking that the book of Deuteronomy is composed of the discourses – “These are the words which Moses spoke unto all Israel” (Deut. 1:1) – of someone who began his leadership career with this self-description: “I am not a man of words . . . for I am slow of speech and of a slow tongue” (kevad pe ukevad lashon) (Exod. 4:10); “I am of uncircumcised lips” (aral sefatayim) (Exod. 6:30). Many commentators understand these phrases as referring to a physical disability.10 Moses raises these points to avoid assuming the leadership role God wants him to undertake. We are not told the origin of his disability in the Bible.11 We do see that, early in his career, upon encountering violence, his powers of verbal persuasion are hardly impressive. For striking a Hebrew slave, he smites the perpetrator without speaking to him (Exod. 2:12). His attempt to intervene verbally between two quarrelling Hebrews, “Wherefore smitest thou thy fellow?” meets with ridicule: “Who made thee a ruler and a judge over us?” (2:13–14). And when Moses intervenes with the shepherds who drove off Jethro’s daughters from the well – “but Moses stood up and helped them” (2:17) – again, he does not speak. And yet, despite his lack of eloquence, in communicating God’s will to Pharaoh and to the Israelites, Moses has no choice but to speak; here he cannot use his hands.12 The Bible stresses the irrelevance of

08 In BT Sota 25, paternalism is questioned regarding one who is mentally disabled. Can the courts act on his behalf ? See Chapter 7 below on the Ordeal of Jealousy. 09 BT Yoma 35b; also Tanhuma Vayetze, 7, Vayeshev, 9; Pesikta de-Rav Kahana (Mandelbaum) (suppl.) 3:2. Note that, referring to this verse, the Midrash on Psalms 146:5 says that “no privation is greater, no affliction more cruel than blindness.” Hence, God’s special admonition concerning the treatment of the blind: “Cursed be he that maketh the blind to go astray in the way” (Deut. 27:18). The same midrash states, “Indeed when God comes to heal the world, He will certainly first heal the blind.” 10 Targum Yonatan, Exod. Rabbah 1:26, Rashi, Ramban, Rabbenu Bahya, Tosafot, Heemik Davar ad loc. Some interpret it as a communication or language problem, see Rashbam, Tosafot, Sforno, Hizkuni. Ibn Ezra sees merit in both views. 11 See Exod. Rabbah 1:26, which ascribes it to his taking hold of hot coals: the angel Michael directed his hand to the coals instead of to Pharaoh’s crown, assuaging Pharaoh’s fear that his sovereignty was threatened; Moses put his fingers to his lips, burning them. 12 Though they still have a symbolic role, e.g., Exod. 17:11. In Num. 20:11, Moses strikes the rock when he should have spoken to it.

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his disability to the leadership role when God counters Moses’ reluctance to undertake the mission by asking: “Who hath made man’s mouth? or who maketh a man dumb, or deaf, or seeing, or blind? is it not I, the Lord?” (Exod. 4:11). Though it may appear to be insuperable, disability cannot impede one’s true vocation. Nevertheless, God proffers Aaron, Moses’ brother, as a speech aide for Moses, to bolster his confidence by ensuring that his speech impediment will not prevent him from carrying out his mission (Exod. 7:1). God, as Moses’ “therapist,” is aware of Moses’ potential, yet provides this remedy because of Moses’ lack of selfconfidence. Thus, while disability does not suffice to disqualify Moses from taking responsibility, his concerns are not dismissed, but rather, patiently and sympathetically addressed. Moses, who will receive the Law, is chosen despite his disability, which is sensitively neutralized, and is thus a prime role model for the disabled. One may object that on the contrary, the choice of Moses illustrates that only divine intervention can enable one to overcome the otherwise insuperable obstacles posed by disability. This view is reflected in a midrash that has God explaining to Moses, “But I desired to show a wonder through thee.”13 It is to emphasize God’s power – not Moses’ potential – that He chooses the speech-disabled Moses as the vehicle of His deliverance. The story that Pharaoh’s counsellors were struck with muteness, deafness, or blindness so as to be prevented from carrying out his orders to seize Moses,14 also supports the view that disability is God’s instrument in bringing about redemption. However, despite this theological debate, and conceding that there may, indeed, be disabilities whose amelioration is beyond human competence and for which the possibility of divine intervention seems the only hope, it is also clear from the story of Moses that the tradition sees confidence, assistance, and effort as empowering one who is disabled to break through the limits seemingly set by that disability. That God works “miracles” this way, too, is compatible with the sources.15 Another example is Samson. Though one talmudic source describes Samson as having been lame in both feet,16 this does not prevent him from taking on and beating the Philistines before being entrapped by Delilah; ultimately he brings down the Philistine temple despite his blindness ( Judg. 16:21, 30). The Gentile prophet Balaam is said to have limped, and been blind in one eye.17 This did not deter him from undertaking to curse the Israelites at the behest of King Balak of Moab.18 Here too, disability is portrayed as not stopping one who is determined to exercise his talents.

13 Cited in Ginzberg, 1969, vol. 2, p. 325. 14 JT Berakhot 9:1; Exod. Rabbah 1:31; Bet Hamidrash 2; Mekhilta de-Rabbi Shimon b. Yochai, Vaeira 6:2; Tanhuma, Shemot, 10; Otzar Hamidrashim, p. 356; Midrash on Psalms 4:3. 15 See Hartman, pp. 239–43. 16 BT Sanhedrin 105a. 17 BT Sanhedrin 105a. 18 Num. 22–4. Ginzberg, 1969, vol. 2, p. 359, suggests that his blindness was a punishment for attempting to curse Israel.

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2. Rejection, acceptance and ambivalence 2.1. Stigma and revulsion Revulsion toward the disabled is a universal phenomenon. Disability is stigmatized, reinforcing this revulsion. Stigmatization of disability is evident in the Bible: the blemished priest is disqualified from serving in the Temple (Lev. 21:18– 23), and blemished animals are not acceptable as sacrifices.19 In the Ammonite peace pact, the men of Jabesh-Gilead have their right eyes gouged out as a sign of humiliation (I Sam. 11:2). Similarly, Samson was blinded ( Judg. 16:21), as was Zedekiah (II Kings 25:7). Lameness and blindness are considered humiliating (II Sam. 5:6). Herod mutilates Baba Ben Buta’s eye(s).20 Images of blindness and deafness are, in a number of instances, metaphors for indifference to moral entreaties, another reflection of the stigmatization of disability.21 Undoubtedly, this stigma both results from and reinforces the universal revulsion for disability. Two prominent personalities experience this revulsion but overcome it: King David, the messianic forebear, and the Mishnaic sage, R. Eleazar. King David instinctively recoils from disability. The Bible relates how he is “repelled, to the depths of his soul,” by the blind and the lame. When David conquers Jerusalem from the Jebusites, he gives an order to strike down the lame and the blind, giving rise to a saying, “the blind and the lame . . . cannot come into the house” (II Sam. 5:8). Astor wonders if this should be construed as “degrading to the blind and lame, or simply a reaction to the insult directed at David.”22 R. Jacob Ettlinger anticipates this question, suggesting that David had an instinctive, inborn revulsion for the lame and the blind, precisely as the text states.23 He contrasts the term used here, “hated of David’s soul” to “hate . . . in thy heart” (Lev. 19:17), interpreting the latter as a rational response to what another has done, and the former as inborn, irrational, without connection to any antecedent cause. Here then, the biblical narrative illustrates the virtually universal phenomenon of the disabled arousing primordial abhorrence. This terrible insight helps us appreciate Ettlinger’s interpretation of David. Assuming David’s revulsion to be “inborn,” his achievement in overcoming it is particularly admirable. Though Mephibosheth, his deceased friend Jonathan’s

19 Lev. 22:25; Num. 19:2; Deut. 15:21; Mal. 1:8, 13 sees them as an abomination. R. Johanan sees the zealousness of Zechariah b. Abkulis in upholding these strictures as the immediate cause of the destruction, BT Gitin 56a. 20 BT Baba Batra 4a. 21 See e.g., Isa. 42:18–20. 22 Astor, p. 28. In II Sam. 5:6, David was taunted by the Jebusites, “Except thou take away the blind and the lame, thou shalt not come in hither.” 23 Responsa Binyan Tzion 75. Some discount the text’s literal meaning: Targum Yonatan interprets “lame and blind” as sinners and transgressors, and Rashi, as referring to idols. Ettlinger rejects these answers as incompatible with the plain meaning of the text.

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only surviving son, is lame (II Sam. 4:4), David extends the protection of his house to him. Rather than sustaining him at a distance, as suggested by his instincts, David makes him a permanent guest at the royal table (II Sam. 9:6–13). Ettlinger lauds his actions as a moral achievement.24 The reflexive recoil from imperfection is also found in a talmudic anecdote where R. Eleazar, riding leisurely, much elated because he had done well in his studies, chanced upon “an exceedingly ugly man” to whose greeting of “Peace be upon you, Sir” he callously replied, “Raka, how ugly you are. Are all your fellow citizens as ugly as you are?”25 The existential universality of disability and its origins in Creation are forgotten in this spontaneous response. The man coolly retorted: “I do not know, but go and tell the Craftsman who made me, ‘How ugly is the vessel You have made.’” Deflecting the remark’s insulting intent, and recasting it as critical of God, he puts R. Eleazar on the defensive.26 He reminds R. Eleazar of the ultimate indebtedness of all creatures, able-bodied and disabled alike, to a Creation in which they played no role. R. Eleazar acknowledges his error apologetically, but the man refuses to accept the apology and is not mollified. Upon discovering that R. Eleazar is a renowned teacher, he adds, “may there be no more like him in Israel!” At the townspeople’s insistence he finally forgives R. Eleazar, “only on the condition that he never say such a thing again.”27 R. Eleazar subsequently expounded that “one should always be gentle, as the reed, and never unyielding, as the cedar.”28 From a moral perspective, physical perfection is a superficial criterion of human excellence.29 Exaggerated pride can cause one to lose sight of his shared humanity with others less conventionally endowed. The account appeals to our basic understanding that, as creatures of God, all human beings, healthy and blemished alike, are deserving of respect and acceptance. Some teach that the ugly man in the story is none other than Elijah the prophet, who came to educate R. Eleazar about pride and human dignity.30 The literature also includes several devastating judgments of the blind. Based on the prooftext, “He hath made me to dwell in darkness, being like those that

24 Binyan Tzion 75:3. 25 BT Taanit 20a. Also in Derekh Eretz Zuta 4 and Kala Rabbati 13a. “Raka” is so derogatory that it suggests he infers the man’s morals are ugly from his ugly appearance. See the Higger edition of Masekhtot Derekh Eretz, p. 61, drawn to my attention by Dr. M. van Loopik. 26 R. Tzvi Eliezer Fleckles, adducing God’s creatorship, rules that infants with extreme deformities must be saved, Teshuva Meahava, 1: #51, cited in Ilani and Weinberger, 1987, p. 60. 27 BT Taanit 20b. The moral is explicit in these Rabbinic teachings: “If there is no common decency, there can be no Torah” (Mishna Avot 3:17); “Be humble before all people” (Mishna Avot 4:10). 28 BT Taanit 20a. 29 From his description as “flawless” (tamim) (Gen. 6:9), the Talmud initially construes Noah as a physically perfect specimen, but rejects this physical reading for a moral one, viz., perfection of character, “flawless in his ways” (tamim bidrakhav) (BT Avoda Zara 6a). 30 BT Taanit 20b, Rashi and Tosafot s.v. nizdamen.

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have been long dead” (Lam. 3:6), R. Samuel states: “Four are regarded as dead: the leper, the blind man, he who is childless, and he who has become impoverished.”31 The hopelessness and powerlessness of these sufferers is taken as a given. However one explains this statement, it is regrettable. Steinberg says that most authorities disregard this statement, construing it as of homiletic rather than legal significance.32 Astor explains it as a way of saying that the blind cannot fully enjoy life, being “partially dead” in that their eyes do not function.33 The Tosafot explain that it is meant to convey compassion;34 it is, however, used by some to justify corneal transplants on the Sabbath, on the grounds that not to do so is to allow a person to become “dead” by virtue of becoming blind. Mistrust of disabled persons, and attribution to them of general incompetence as a result of their disability, is reflected in R. Zeira’s comment that “we do not have to concern ourselves with the reports of R. Sheshet, since he is blind.”35 Nevertheless, the Talmud praises R. Zeira for this caution, and bestows upon him the accolade of “faithful.”36 R. Zeira argues that as R. Sheshet, a great scholar – the Talmud relates that R. Hisda’s lips trembled admiringly upon witnessing how easily Sheshet quoted baraitot (BT Eruvin 67a) – was unable to see who was orally transmitting a tradition, he could not accurately identify the speaker, and hence was not to be relied on. R. Judah construes visual disability as total incapacitation that renders the sufferer utterly incompetent, and exempt or disqualified from precept observance; R. Meir holds one who is blind to be responsible for all precepts other than those in which vision plays a crucial role. R. Joseph, himself blind, expresses frustration that blindness deprives the individual of the enjoyment of the other senses, pervading the person as a whole. Commenting on a talmudic insight that “one who sees and eats is not like one who does not see and eats,” he applies it to the blind, who “eat and are never satisfied.”37 The depressive effect that R. Joseph describes is at issue in the disagreement between R. Judah and R. Meir. They differ on whether blindness, the dysfunction of one organ, should be seen as affecting the entire person, or only specific functions.38 Though it is easy to interpret R. Joseph as agreeing with R. Judah, his observation about the demoralizing effect of disability need not be construed as implying denying the blind halakhic competence. The psychologically debilitating

31 Genesis Rabbah 71:6 on Gen. 30:1; Exodus Rabbah 5:4 on Exod. 4:19; Lamentations Rabbah 3:2 on Lam. 3:5; Otzar Hamidrashim, pp. 162 and 505; and see BT Nedarim 64b; Pirkei de-Rabbi Eliezer 32. 32 “The Blind . . .,” 1986, p. 286. 33 Astor, p. 130. 34 “Venafka mine lemibaei aleihu rahami,” on BT Nedarim 64b, s.v. arbaa hashuvim kemeitim. 35 JT Shabbat 1:2. 36 JT Shabbat 1:2, citing Prov. 20:6, “Who can find a faithful person?” 37 BT Yoma 74b (also cited by Astor, p. 129). 38 See Chapter 6 below.

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effect of disability is also evidenced in R. Sheshet’s self-characterization as “wretched” due to his blindness.39 The Talmud realistically acknowledges that disability is undesirable. Hence, R. Samuel b. Nahmani’s statement that Eliezer, Abraham’s servant, was fortunate that his prayer that he might find a suitable spouse for Isaac, which specified only that she be considerate of man and beast, led him to Rebecca (Gen. 24:14). “She might have been lame or blind, but he was fortunate . . . in that it was [the nondisabled] Rebecca who chanced to meet him.”40 Yet acknowledgment that disability is inauspicious is a far cry from stigmatizing the disabled as dead. The line between false idealization and callous insensitivity must be preserved in a morally responsive culture, and criticized and excised where present. 2.2. Empathy Tenderness to the plight of the disabled is expressed in Isaiah’s remarks to the eunuchs, who feel excluded from the covenant they are unable to perpetuate due to their childlessness. He comforts them along with strangers, who likewise feel excluded: “and let not the eunuch say ‘I am a withered tree’ . . . I will give them in My house . . . a monument and a name better than sons or daughters. I will give them an everlasting name which shall not be cut off ” (Isa. 56:3–4). He speaks directly to their pain, their fear of being forgotten. He does not call them “dead,” though they feel that way.41 The antipathy toward the disabled manifested by David and R. Eleazar contrasts sharply with the attitude of the naturally empathetic R. Hoshea.42 It was not beneath the dignity of that great teacher to eat with his son’s blind teacher. Once, when he was delayed, he proffered a heartfelt apology that was graciously accepted with these words: “You are appeasing one who can be seen but does not see; may the One who cannot be seen but sees everything, receive your apology as easily as I do.” R. Hoshea pressed him to explain why he felt God would be pleased by one whose apology was accepted by a blind man. He replied that he learned this from the response of a certain blind man to solicitous treatment received from R. Eliezer b. Jacob’s servants when they saw how R. Eliezer b. Jacob gave up his bed for the blind man: You have performed an act of loving-kindness to one who can be seen but who cannot see; may He who cannot be seen but sees everything receive your praise and treat you with praise. R. Hoshea easily accepted that the blind teacher had valuable insights to impart.

39 40 41 42

BT Megila 29a. That he was not born blind is evident from BT Berakhot 57b. BT Taanit 4a. See Radak ad loc. on the eunuch’s frustration and hopelessness due to his childlessness. JT Peia 8:9.

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The gentleness displayed by R. Hoshea is also reflected in a talmudic discussion about euphemism, a linguistic strategy for avoiding offense by substituting an innocuous term for one that is insulting or insensitive. With subtle consideration for the feelings of the disabled, R. Zechariah, son-in-law of R. Levi, avoiding the use of a blunt phrase that might be hurtful, referred to the blind as those “with excess of light” (sagi nahor)43 – the very opposite of the objective physical fact.44 This phrase gave rise to a general term for euphemism – “excessively light language” (lashon sagi nahor).45 The use of subtle language to avoid causing pain is welcome in communicating about disability, and other vulnerabilities.46 Should the truth be bent to avoid offending the disabled? The schools of Hillel and Shammai disagree on this when the question arises in the context of a discussion about rejoicing at the wedding celebration of a disabled bride.47 The school of Shammai insists that one praise the bride “as she is”; the effervescence of joy is not a license to lie: “What if she is lame or blind, does one say of her, ‘beautiful and graceful bride’? whereas the Torah says, ‘Keep thee far from a false matter’ (Exod. 23:7).” The school of Hillel, in consideration for the subjective joy experienced by the bride and groom, recommends praising every bride as “beautiful and graceful,” whatever her objective endowments: According to your words, if someone has made a bad purchase in the market, should one praise it to his face, or deprecate it? Surely, one should praise it to his face, even if it means sacrificing a little of the truth. The groom should be supported in his decision to have chosen this wife even if this calls for dishonestly praising her. Why doesn’t Hillel concede to Shammai that it is best to say something objectively praiseworthy about her, given that he too is bound by the scriptural injunction (Exod. 23:7) to tell the truth? Some suggest that Hillel is sensitive to the fact that praising the bride demonstratively on her character or some other specific virtue may subtly hint at a concealed flaw.48 While allowing the benevolent lie, Hillel should not be taken to imply that there is no meaningful objective standard of beauty – he does, after all, describe the purchase as objectively bad. He would

43 JT Ketubot 1:1, and see BT Berakhot 56a. 44 However, admittedly, it is not certain that he does not mean this sarcastically. It is adduced as a parallel to R. Ishmael b. R. Jose’s ruling on a woman whose hymen bled only “as much as a mustard seed,” the implication being that her virginity was suspect: “May such as you become many in Israel”; the Talmud queries whether this is meant pejoratively or positively. 45 JT Peia 5:5, 19a; Leviticus Rabbah 34:13. 46 See Astor, pp. 162–70 and 183–9, for communicating on disability. Ironically, the title of Astor’s . . . Who Makes People Different has been criticized as offensive in referring to the blessing recited upon encountering certain types of disability. I discuss the blessing in Chapter 5. 47 BT Ketubot 17a. 48 Tosafot ad loc.

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undoubtedly agree that as seen by those singing her praises, the bride is not perfect, but out of concern for the dignity of the individuals involved, he favors relating to the subjective perspective of the groom, who should rejoice in his bride. At the conclusion of this controversy, the Talmud extrapolates to human interactions in general: “One should always be pleasant with people.” Human interactions involve compromise – we should be able to take the other’s perspective into account, to identify with the other. Being pleasant with others justifies not only ignoring certain truths, but even some constructive prevarication. Hillel’s comparison of the lame bride with a bad purchase is thought-provoking. Should one avoid judgments implying that disabilities are analogous to flaws in material objects? In rejecting such analogies, and in resorting to euphemism and benevolent lies, are we deluding ourselves that all qualities of life are equally enriching, and blurring the possibility of honest evaluation of the needs of the disabled? We are now only beginning to understand the different qualities of human experience that emerge as a result of disability, talents and faculties not accessible to the non-disabled. An example is the extraordinary case of Nahum Gamzu. Nahum Gamzu showed an exceptional capacity for deepening the significance of living through the transcendence of suffering. It is related that “he was blind in both eyes, his hands and legs had been amputated, his whole body was covered with boils, and, in a dilapidated house, he lay on a bed the legs of which were immersed in vessels of water to prevent the ants from crawling onto him.”49 When his students asked why this fate had befallen a righteous man, he replied: I brought it all on myself. Once, I was travelling to the home of my father-in-law, and with me I had three asses, one laden with food, one with drink, and one with all kinds of delicacies. A poor man stopped me on the road and said, “Master, give me something to eat.” I replied, “Wait until I unload something from the ass.” I had just begun to unload the ass when the man died [of hunger]. Feeling remorse and guilt at this tragedy, he brought the curse of disability and disease upon himself: I then went and lay down by him and exclaimed, “May my eyes, which had no pity upon your eyes, become blind; may my hands, which had no pity upon your hands, be cut off.” And my mind was not at rest until I added, “May my whole body be covered with boils.” To his students who, filled with compassion, exclaim, “Alas that we see you thus,” he replies, “Woe would it be unto me had you not seen me thus.” Despite his suffering, he would have regretted not having undergone the infliction of disability.

49 BT Taanit 21a.

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A variant in the Jerusalem Talmud ends differently: [When Nahum] went to R. Akiba, he [R. Akiba] said to him, “Woe is to me. If only I did not have to see you [afflicted] thus.” But [Nahum] replied to him, “Woe is to me. For I do not see you afflicted thus.” He asked, “Why do you curse me?” Nahum replied, “Why do you rebel against suffering?”50 In this version, the debate between R. Akiba and Nahum focuses on whether suffering is a good in its own right, independently of its role as punishment. While Nahum sought his suffering as punishment for his indifference, R. Akiba did not deserve to be punished. So why would Nahum want to see suffering inflicted on R. Akiba? Apparently, he considers the edifying quality of suffering to extend well beyond its role as punishment for sin. Not to suffer is to miss out on a very significant strain of awareness accessible only through suffering.51 Acknowledgment that the disabled may have access to insights inaccessible to others is not incompatible with gratitude that one does not face such a challenge oneself. Nahum Ish Gamzu, willing his disability, is an exceptional case. One who has such access by virtue of the disability that has been thrust upon him is to be viewed with a certain reverence, a certain respect, in view of the unique human capacity it reveals. The tradition is familiar with compensatory mechanisms that emerge when one of the senses is dysfunctional – often, heightened acuity of another sense. The Sages discuss the age at which a child visually identifies its mother – Rabbah passes on Rab’s view that it is at three months, Samuel argues it is at thirty days, R. Isaac, in the name of R. Johanan, at fifty days. “How, then, does a blind child identify [its mother]?” R. Ashi replies, “by smell and taste.”52 R. Sheshet, the blind scholar, demonstrated his compensatory capacity to a Sadducean who spitefully derided him when he wanted to join others going to see the king: “The whole pitchers go to the river, but where do the broken ones go?”53 R. Sheshet persisted: “I will show you that I know more than you,” then discerned the coming of the king before the Sadducean, demonstrating to the sighted, derisive Sadducean that a disabled person, using his intelligence and acute hearing, could compensate for his disability. Similarly, a one-eyed slave acquired by an Athenian Jew demonstrated his acute perception by sensing a distant caravan and predicting that it included “a she-camel,

50 JT Peia 8:9. 51 Mare Hapanim on JT ad loc. s.v. amar lei uma, reconciles the discrepancy between R. Akiba’s advocacy of suffering as edifying in BT Sanhedrin 101a, and his resistance here to seeing in suffering anything beyond pain, by distinguishing between acute suffering, which R. Akiba saw as edifying, and chronic suffering, which he did not view in that light. 52 BT Ketubot 60a. 53 BT Berakhot 58a.

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blind in one eye, with twins in its womb, carrying two skin-bottles, one containing wine and the other vinegar, and a Gentile camel-driver.”54

3. Theology of disability The sources manifest ambivalence on the question of the deeper significance of disability. For example, one midrash sees the incapacitation wrought by disability as positive, enabling God’s glory to reside in the stricken individual. One who is fully alive, striving after his own goals, is not trusted to overcome his evil inclination, whereas he whose life is tantamount to death can be invested with God’s name. Thus God is identified to Jacob as “the God of Abraham thy father, and the God of Isaac” while Isaac is still alive (Gen. 28:13).55 R. Berekhya argues that since Isaac’s blindness keeps him confined to his home, his evil inclination is contained. Another comment on the same verse attributes Isaac’s blindness to divine intervention, as punishment for tolerating Esau’s wickedness and accepting his bribery, but also sees it as divine compassion intended to keep Isaac from suffering at the sight of Esau’s corruption.56 We now consider some accounts of the deeper meaning of disability.

3.1. Divine retribution Health and infirmity are often conceived as rewards for virtue or punishment for iniquity. Just as Sinai is construed as the ultimate moment of healing, so disability is often presented as the fruit of transgression: “After they sinned not many days passed before there were among them persons with issue and lepers, lame and blind, dumb and deaf, mentally disabled and retarded.”57 Potiphar’s emasculation is a divine punishment for his perverse sexual designs upon Joseph.58 Coupling in a mill, considered an improper mode of marital comportment, may lead to epileptic children.59 Slander is punished by leprosy,60 while neglect of the menstrual laws, tithing of the dough, and lighting of Sabbath candles is punished by death during childbirth.61

54 55 56 57 58 59

Midrash on Lamentations 1:12. A similar anecdote is cited in BT Sanhedrin 104b. Tanhuma, Toldot 7. Ibid. See Astor, pp. 116–17, for Aggadic explanations of Isaac’s blindness. Song of Songs Rabbah 4:7. Genesis Rabbah 86:3, commenting on Gen. 31:1. BT Ketubot 60b. This is only one example from a list of various temperaments and deviations that come about in children as a result of their parent’s prior sinful activity. Most are linked to diet, e.g., eating mustard begets intemperate children. 60 Leviticus Rabbah 16:1–4; Deuteronomy Rabbah 6:8. Slander, murder, false oaths, incest, boorishness, theft, and meanness are linked to leprosy in BT Arakhin 16b. 61 BT Shabat 32a.

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Viewing disability this way is extended to seeing the suffering of a child as punishment due a parent. Isaac’s blindness is explained as a consequence of Sarah’s concealing from Abimelech the truth about her relationship with Abraham, thereby misleading him into a possible sin for which his childlessness was anticipatory divine punishment. Regarding this, R. Isaac reads the verse, “Behold it is for thee a covering of the eyes” (Gen. 20:16), as an allusion to the curse of blindness that is ultimately realized in Isaac (Gen. 27:1).62 Such teachings accustom those who view the Bible as the revealed word of God to see disability as divine retribution and the disabled as deserving of their affliction.63 Perhaps these linkages are intended as admonitions to deter would-be sinners rather than as causal explanations. This is Meiri’s view.64 Still, they have been taken literally: regarding a minor girl, one contemporary authority writes that one cannot say that she is being punished for sins she will commit, “since she has no consciousness and no sin or anything resembling sin, rather, she is certainly being punished for the guilt of her parents.”65 Mahari Mintz is of the opinion that a minor should not recite the blessing for a danger that has been averted, since he thereby recalls his father’s sins in consequence of which he, the child, incurred that danger.66 The story of the Sodomites who were afflicted with blindness (Gen. 19:11) exemplifies the connection postulated between disability and divine punishment or deterrence.67 “Though they were afflicted with blindness they continued to try to find the entrance, to break down the door, as the Sages say: ‘even at the entrance of hell, the wicked do not repent.’”68 Disability is not always divine retribution – it can also be a divine sign. On the eve of his return to the land of his fathers, a nocturnal wrestling match takes place between Jacob and a stranger, the outcome of which forever changes Jacob’s destiny. He emerges with a disabling limp, “and he limped upon his thigh” (Gen. 32:25–33). This disability is commemorated in the ritual prohibition against the eating of the sinew of the thigh, the sciatic nerve. The import of this disability is more

62 See BT Baba Kama 93a. 63 R. Hiya “the Great” teaches that one who could have incurred stoning for committing a capital crime, but for whatever reason escaped punishment, “falls from the roof ”; one who should have incurred burning, “either falls into a fire or a snake bites him,” etc. That is, on this view, accidents such as falls should be interpreted, not as arbitrary quirks of fate, but as well-deserved divine retribution in lieu of the stoning, etc.; see BT Sota 8b, Ketubot 30b, Sanhedrin 37b. For biblical examples, see Lev. 26:14–38 and Deut. 28:15–68. 64 Bet Habehira, on BT Shabat 31a, cited in Bat Adam, p. 80. 65 Henkin, 1986, p. 50. 66 Lahmei Toda, 5. Also see Inbari, 1991; and see Chapter 8. 67 This biblical story can be cited to counter Astor’s claim that the biblical God is not generally pictured as punishing people by afflicting them with physical infirmities (p. 29). Other counterexamples include the case of Miriam (Num. 12:10–12), which he cites, the Ten Plagues, and the threat to visit these plagues on the Israelites, should they fail to observe the commandments (Exod. 15:26; Lev. 26:14–41; Deut. 28:15–68, esp. 28:60; II Kings 6:18–20). 68 Sforno ad loc.

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significantly established in the change of Jacob’s name to “Israel,” as a reminder that “thou hast striven with God and with men, and hast prevailed” (Gen. 32:29). Thus enshrined, his disability is a source of pride and status. We do not know whether Jacob’s disability was temporary or permanent.69 Maimonides, Nachmanides and others even disagree as to whether the episode was a real event or a prophetic dream.70 On a novel reading, Jacob’s deceit is tempered by the disability which he suffered in exchange for his blessing. Esau is reconciled to Jacob, though he had prepared for a violent encounter, bringing 400 armed men, because Jacob comes as a new man, Israel, who “limps toward him with a repentant air and not deceitful arrogance.”71 The many midrashic readings of the verse, “And Jacob came in peace [literally, whole]” (Gen. 33:18) invite the inference that lack of physical wholeness does not imply loss of wholeness in other spheres, and may even signal a new kind of wholeness. Different midrashim interpret the wholeness variously as physical, familial, economic, and intellectual.72 3.2. Childlessness Barrenness is a critical fact in the lives of key biblical personalities: Sarah (Gen. 16:1), Rebecca (Gen. 25:21), Rachel (Gen. 29:31), Manoah’s wife, Samson’s mother ( Judg. 13:2), and Hannah (I Sam. 1:2). It is viewed as a curse, just as fertility is viewed as a great blessing. The reward for observance of God’s commandments includes, among other things, protection against barrenness.73 Cessation of fertility occurs in the episode of Abimelech and Abraham (Gen. 20:17).74 For Sarah, childlessness is a devastating experience. “Behold now, the Lord hath restrained me from bearing” (Gen. 16:2), she complains to Abraham. Frantic, she is ready to have Abraham consort with her maidservant, Hagar, for the sake of restoring herself through Hagar’s surrogate childbearing. This unsatisfactory solution leads to jealousy, suspicion, and ultimately to seemingly eternal rivalry between Ishmael and Isaac (Gen. 17:18–19). Sarah’s infertility highlights God’s will to implement a covenant with Abraham and his descendants against

69 Rashi, Siftei Hakhamim and Sforno ad loc., see it as very temporary, disappearing with the sunrise. Rashi, s.v. vayizrah, cites a midrash to the effect that the sun was therapeutic, while Sforno sees the healing as prefiguring the messianic era. Kli Yakar asserts that Jacob’s disability is permanent. 70 Maimonides asserts: “We have explained that wherever it is mentioned that an angel was seen or had spoken, this happened only in a vision of prophecy or in a dream . . .. All the wrestling and the conversation in question happened in a vision of prophecy” (Guide 2:42). Commenting on this, Crescas states that the report of Jacob’s limp proves that this was a real occurrence, and expresses amazement that Maimonides can think otherwise. 71 Plaut, 1981, p. 222. 72 Genesis Rabbah 79:5. 73 See Deut. 7:14. 74 See Rashi and Ramban ad loc., and Midrash Rabbah on Gen. 45:4, p. 381.

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the biological odds.75 Abraham asks: “O that Ishmael might live before Thee!” – he would be satisfied with whatever progeny he is granted. To this God responds, “Nay, but Sarah thy wife shall bear thee a son” (Gen. 17:18–19). The covenant transcends nature; disability is not incorrigible. This victory over nature accounts for the joyous laughter at the birth of the son eponymously named Yitzhak (Isaac), literally, laughter (Gen. 21:6). Sarah subsequently banishes Hagar’s son Ishmael from the house. Is it callous selfishness, or over-protectiveness, that makes her read Ishmael’s playful behavior in the worst possible light, and in response beseech Abraham to “cast out this bondwoman and her son; for the son of this bondwoman slave shall not be heir with my son” (Gen. 21:9–10)? What did she see in his “playing” that threatened Isaac? This troubled the commentators and led some to explain that Ishmael was not merely playing, but “toying” with murder, idolatry, and adultery.76 Others see the incident as evidence that disability need not foster empathy.77 Hence it is necessary to constantly remind the Israelites of their slavery in Egypt, as their compassion for the weak and vulnerable cannot be taken for granted. Rebecca was not left to cope with her childlessness alone. “Isaac entreated the Lord for his wife” (Gen. 25:21).78 Rashi emphasizes their mutual awareness and sharing of travail: “He stood in this corner and prayed and she stood in the other corner and prayed.”79 Rachel’s barrenness is a consequence of the rivalry between her and Leah. “The Lord saw that Leah was hated, and He opened her womb; but Rachel was barren” (Gen. 29:31), a disability that in the face of her sister’s fecundity, feeds her jealousy and leads her to desperately implore Jacob, “Give me children, or else I die.” Unable to accept her disability, she vents her frustration on Jacob. Jacob, angered by her desperation, rebukes her: “Am I in God’s stead, who hath withheld from thee the fruit of the womb?” (Gen. 30:2). Knowing it is her problem, as he has fathered children, he responds in anger rather than with empathy. Like Sarah, Rachel uses her handmaiden as a surrogate, and when she conceives, asserts, “God hath judged me, and hath also heard my voice, and hath given me a son” (Gen. 30:6). With the next surrogate son, she also experiences relief in her rivalry with Leah, saying, “With mighty wrestlings have I wrestled with my sister,

75 Hertz comments on Gen. 25:21 that the matriarchs’ sterility may have been intended to emphasize that the children who were eventually born were a gift of grace from God for the fulfilment of His purpose. 76 See Rashi, Ibn Ezra and Nachmanides on 21:9, and Midrash Rabbah 53:11, p. 469. 77 See Nachmanides on Gen. 16:6. 78 Literally, “in her presence.” Mikra Kifshuto, p. 71, translates the preposition “lenokhah” thus, rather than “concerning,” which would imply that Isaac prayed alone concerning his wife’s desire to have a child. 79 Rashi ad loc., and see Sforno. An alternative tradition, mentioned in BT Ketubot 64a in the name of R. Isaac, is that Isaac was himself infertile, as was Abraham, and was thus praying for his own recovery as well as his wife’s.

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and have prevailed.” Yet these surrogate sons do not quite compensate for her barrenness. She even offers Leah her nocturnal privilege with Jacob (Gen. 30:14–16) – her unfulfilled maternal need overtakes her love for Jacob. Her humiliation at being childless is evident when, upon finally bearing a child, she states, “God hath taken away my reproach” (Gen. 30:23). In the episode of Abimelech and Sarah (Gen. 20:17–18), childlessness is a preventive measure to thwart any sexual designs Abimelech may have on Sarah, whom he does not know to be Abraham’s wife. God remembers Sarah with compassion even before Abimelech is healed, according to Rashi, because Abraham prayed compassionately for Abimelech. Empathy with the plight of others, especially when one suffers from the same disability, is presented as bringing blessing in its wake. Two other childlessness stories: Samson’s mother ( Judg. 13:1–24) and Samuel’s mother Hannah (I Sam. 1:1–2:10), are happily resolved by divine intervention. Conditions are placed upon the rearing of both offspring, who are destined for special roles. Samson must be raised as a Nazirite, since he is destined to deliver Israel from the Philistines ( Judg. 13:5). Hannah, Samuel’s mother, pledges that no razor will touch her son’s head, and that he will be delivered to the Lord’s service. In both instances, a healing of disability is bargained for with God, and a maternal prerogative surrendered. The children are reared with the consequences of the respective bargains, as second-generation “disabled.” Samson, destined for holiness from the womb, debases himself with Philistine women. And Samuel, the exceptionally holy child of a bargain between God and a barren woman, has children who are not only unexceptional, but contemptible (I Sam. 8:3).80 3.3. Theological approaches The theological significance of disability is not self-evident, and proposed meanings range from divine punishment to divine portent. Indeed, disability may even be theologically neutral. Consider the following tradition. A certain Zunin once challenged R. Akiba to explain why it was that, if idolatry was ineffectual, it still seemed, in certain cases, to heal the blind and deaf. R. Akiba explained that, when the objective conditions for healing were met, the fact that one confounded this with idolatry would not alter the structures of reality, in this case the healing.81 That is, the incurring of disability, and the disability-healing nexus, operate outside the framework of faith and creed, and perhaps even that of morality.82

80 See Ecclesiastes Rabbah on Eccl. 10:5; and Numbers Rabbah 10:5. 81 Otzar Hamidrashim, p. 450. 82 A disabled individual may inexplicably recover, while a perfectly healthy person may suddenly become disabled. This is the message of several accounts in Numbers Rabbah; also see Tanhuma, Buber edition, Hukat, 1, on a case where the conditions of someone blind and someone sighted are “exchanged” overnight, as well as one of sudden restoration of sight when a blind man immersed himself in Miriam’s Well.

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The disabled individual often seeks an explanation for his suffering; failure to find in it any significance at all may undermine his faith in justice and reason. R. Joshua b. Korha is pressed to justify the congenital disabilities of mutes, the blind, and lame newborns, given that all the Lord’s ways are just.83 He asserts that the Lord has foreknowledge of sin; congenital afflictions anticipate the appropriate punishment. For some, provision of such a rationale preserves a sense that reality is orderly, and this in itself often boosts morale. Job was eventually pacified by being persuaded that the universe was not chaotic, though he could not decode it ( Job 42:2–3).84 R. Johanan b. Dehabi and the Sages dispute the cause of disabilities, the former claiming that the ministering angels communicated to him that they result from sexual violations during coitus, even between a married couple. The Sages disagree, since everything is permitted between a married couple.85 The idea that disability is imposed for the violation of sexual mores may be even more demoralizing for some than the thought that God’s universe is simply chaotic. The Rabbinic tradition offers a range of alternative arguments, not a systematic theology. Instead of working the complexity of life into a fixed system, it presents only fragments, each providing some insight. The weaving of these fragments into a satisfying explanatory whole is a task left to individuals or communities that bring to it different needs and perspectives.

4. Morale and hope Disability is a psychologically taxing experience, draining much energy in the constant battle against demoralization. Any victory over disability brings hope to other sufferers. This explains why Sarah, upon hearing the news of her upcoming pregnancy, declares, “God hath made laughter for me; every one that heareth will laugh on account of me” (Gen. 21:6). Asked the significance for others of Sarah’s being remembered by God, R. Samuel b. Isaac answers that when Sarah was remembered, so were many other barren women, as were many of the deaf, the blind, the mentally disabled.86 Sarah’s healing was thus a victory even for those with other disabilities.87 The joy of overcoming particular disabilities should be shared, so that others can be moved to hope. Job is portrayed by Eliphaz the Temanite as supporting the morale of the disabled, construing their disability as a portent for future redemption: “Then the eyes of the blind shall be opened and the ears of the deaf shall be unstopped. Then

83 84 85 86 87

Deut. 32:4. See Tana de-vei Eliahu Zuta (Ish Shalom) 23; also Otzar Hamidrashim, p. 319. See Hartman, chapter 11. Batei Midrashot 1, Kala, chapter 2. Genesis Rabbah 53:8; also Pesikta Rabbati 42. See the parallel text of Otzar Hamidrashim, p. 486, in which “all the childless,” “all the lame,” “all the blind” and “all the mentally disabled” are healed.

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the lame shall leap like a deer, and the tongue of the dumb shall shout aloud” (Isa. 35:5–6). But Eliphaz’s admonition to Job underscores how futile these comforting words sounded when applied to his own personal disability.88 “Thy words have upholden him that was falling; and thou hast strengthened the feeble knees. But now it is come unto thee, and thou art weary; it toucheth thee, and thou art affrighted” ( Job 4:4–5).89 Morale is often a function of two elements – acceptance, and hope. Given the objective grounds for yielding to despair – personal limitations, pain, the awareness of dependence on others, no end in sight to the reality of a life to be lived entangled in a body functioning poorly – there is great heroism in facing the future stoically, without illusions, in accepting one’s physical endowment. Steering free of bitterness through the courage of acceptance – kabalat hadin – is an important step in the adjustment of the disabled individual, mobilizing his resources for the long-term.90 But although acceptance is vital, it is insufficient. Hope is also essential to the daily coping of the disabled, if they are to maintain a loving attitude towards the precepts despite disability. However the concept of the messianic era is understood, a key component is commitment to a future that is not limited by the constraints of the present. It is irrelevant, from the perspective of the disabled individual, whether the hoped-for relief is depicted in supernatural or natural terms. On the Maimonidean conception, anchored in the Sinaitic covenant, “hope grows from a commitment to responsibility, not from a yearning for ultimate peace and resolution,” whereas on Nachmanides’ view, “messianic hope is openly a new liberation, a new creation, a new unity between nature and history, a new human being,” based on the miraculous Exodus paradigm.91 The Bible is replete with expressions of optimism. Isaiah, especially, repeatedly refers to the prospect of future healing of the blind, deaf and lame.92 While the commentators generally do not take these assertions literally, it seems unavoidable not to in some cases.93 When the Psalmist asks the worshipper to praise the Lord for restoring sight to the blind and straightening the bent (Ps. 146:8), “straight” is taken literally by Ibn Ezra.

88 89 90 91 92 93

“A person cannot take himself out of his own prison,” BT Berakhot 28b. Tanhuma, Vayishlah, 8; also Aggadat Bereishit 56. See Hartman, pp. 275–6, on hope and resignation. Hartman, pp. 249–55 elaborates on the two views. Isa. 29:18; 30:26; 35:5–6; 42:7, 16; 43:8; Jer. 31:7; Micah 4:6. Rashi, Radak, and Metzudat David generally explain these remarks in a non-literal way, referring to those who make themselves blind and deaf in disregarding God’s will and law. That the prophets are speaking metaphorically is clear in some places, for example, Isa. 29:9, though Isa. 30:26 appears to be intended literally, as does Jer. 31:7. No one argues that the disabilities imposed for disobedience in Deut. 28:28 are not meant literally.

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In the Aggada, such language is explicit and used extensively: Come and see how all whom the Holy One, blessed be He, hath smitten in this world he will heal in the future that is to come. The blind will be healed, as it says, “Then the eyes of the blind shall be opened (Isa. 35:5); the lame, “then shall the lame man leap as a hart” (35:6); the mute, “And the tongue of the mute shall sing” (35:6). Thus all shall be healed, save that as a man departs [this life] so will he return resurrected. If he departs blind, he will return blind; if he departs deaf, he will return deaf; if he departs mute, he will return mute; if he departs lame, he will return lame . . . says God to them, ‘let them arise in the same state in which they went, and then I will heal them.’ After that animals too will be healed, as it is said, “The wolf and the lamb shall feed together” (Isa. 65:25).94 Different visions are proffered in this passage: the ultimate healing of the disabled, healing only after resurrection in the state in which they left life, and the ultimate healing of all creatures. The reader must be reminded that the dramatic and apocalyptic rhetoric of this type of Aggadic passage, which seems to support the supernaturalistic approach, is not seen as an insurmountable hermeneutic obstacle by those who take such passages to be allegorical.95 Associated with such Aggadic texts are those that anchor messianic hope to redemptive experiences that have already taken place: All that the Holy One, blessed be He, intends to perform or to make afresh in His world in the time to come, He has already partly performed in anticipation in this world through the instrument of His righteous prophets. The Holy One, blessed be He, said, . . .. I am He who will remember the barren women and have already done so, as we know from the words, “And the Lord remembered Sarah” (Gen. 21:1). . . . I shall cause the blind to see in the time to come, and have already done such a thing, as it says, “And the Lord opened the eyes of the young man” – of Elisha (II Kings 6:17).”96

94 Genesis Rabbah 95:1 with parallels in BT Sanhedrin 91b; Tanhuma Vayigash 8 (Warsaw and Buber eds), Metzora 7; Ecclesiastes Rabbah, 1:4, 2; Midrash Zuta Kohelet (Buber) 1:4; Otzar Hamidrashim, pp. 407, 486, 578; Song of Songs Rabbah 4:12, 4; and Midrash on Ps. 237 on the future healing of muteness and childlessness. 95 For an example, see Code, Laws concerning Kings and Wars 12:1–2. 96 Leviticus Rabbah 27:4. Also Ecclesiastes Rabbah 3:14, 1; Tanhuma (Buber edition), Emor, 12; in Batei Midrashot 2, Sefer Zerubabel, this healing capacity is one of the misleading signs exploited by false messiahs.

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The anchoring of a future healing in past events reinforces the belief that this hope is not illusion brought on by despair, but a real, if not immediate, possibility. Hope also animates the covenantal event at Sinai wherein healing is said to have occurred: “This shall be unto you a new experience” (Exod. 12:2).97 Here you are to have a completely new experience which you will have again only in the time-to-come. As in the time-to-come, “the eyes of the blind shall be opened, and the ears of the deaf shall be unstopped” (Isa. 35:5), so here, too, for Scripture says, “all the people . . . said: ‘All that the Lord hath spoken we will do’” (Exod. 19:8) and “And all the people perceived the thunderings” (Exod. 20:15). As in the time-to-come, “Then shall the lame man leap as a hart” (Isa. 35:6), so here too . . ..98 The messianic and covenantal significance of healing disability raises the prospect that healing in the here-and-now is a real possibility, hope for which should not be relinquished, however discouraging the current situation. A culture of responsibility must promote practical relief for disability. Messianic tension invites impatience. The belief that sufferers are not consigned to this fate permanently injects unease into the communal psyche: it cannot relax, knowing that the future depends on its achievements if so much human agony is to be assuaged. Ideally, Jews must take the discomfort of reality personally. It should, moreover, generate empathy for the disabled in that for them, in particular, the present invites constructive dissatisfaction with an incomplete creation begging for repair (tikun).

97 Translating hahodesh (month) as hidush (new experience). 98 Pesikta Rabbati 15. Also Pesikta de-Rav Kahana (Mandelbaum), 5 and 12.

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The obligation to be charitable represents the primary channel for the implementation of society’s responsibility for the well-being of its weaker members. It mandates action to bridge the gaps between the needs of various groups of disadvantaged members of society and their means of satisfying these needs. Communal funds, it is assumed, are limited and insufficient. The disabled individual exemplifies the “other,” who, in revealing his needs, his lack of self-sufficiency, manifests an opportunity for implementing both the ethical imperatives discussed above – dignity, responsibility, and interdependence – and that of charity (tzedaka). In this chapter, I examine the concept of charity in the halakhic literature, and show how the principles elucidated with respect to charity in general are often particularly applicable to situations arising out of disability. Charity, an offering of relief, is primarily remedial. It does not mandate revolutionary redistribution of resources or call for the transformation of society. Yet because it allows people to encounter one another on the basic level of elementary need and response, its transformative effect is nonetheless profound. As Levinas notes, one’s moral capacity is tested primarily by reaching out to the other, and not merely by accepting responsibility for oneself.1 One with needs that he, by himself, is unable to meet, for various reasons – weakness, fear, poverty, social restraints, disability, fate – may require charity. Such an individual may not himself realize what these needs are, or may be too ashamed to ask others for what he lacks, and may even deny himself an accounting of them. The halakha directs every individual both to be responsive to others, and, if necessary, to overcome this resistance to dependence on others, and establishes procedures for delivering assistance with due consideration for the dignity of recipients. The disabled are a population in chronic need of the generosity of others. We now turn to an examination of Jewish law on charity as it applies both to the donor and to the disabled recipient. Judaism’s high regard for a moral life informed by consideration for others is not expressed by a single precept, but embedded in a wide range of precepts that

1 See Levinas, 1975, p. 137.

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reinforce each other and together generate distinctive patterns of ethical interaction.2 Charity is strongly associated with two other values: loving-kindness ( gemilut hesed ) and compassion (rahamim). “Loving-kindness” refers to deeds that involve personal attention, sympathy and service beyond the satisfaction of merely material needs.3 One engages in acts of loving-kindness without any expectation of recompense.4 Charity, the imparting of material benefits, is evaluated not according to the sums given, but according to the degree of loving-kindness manifested.5 Compassion as mere respectful non-intervention and non-interference is not sufficient.6 It also requires an active caring that makes the measure of one’s duty to others, not their rights, but their needs.7 Maimonides traces the many affirmative expressions of loving-kindness back to the Golden Rule, explaining it in its activist meaning, “Do for others . . . all that you would want others to do for you.”8 In the Rabbinic sources, “charity” refers to what would today be considered charity and alms-giving; the Bible, however, has no special term for these activities, and the term tzedaka is used in the wider sense of righteousness in general. Even in the Rabbinic context, tzedaka is not used exclusively to denote charity and alms-giving, but has broader connotations of purity, equity, righteousness, and generosity. Though translated here as charity, tzedaka comes from tzedek, justice. While fundamentally an appeal to the heart and feelings – the Latin root, caritas, means love – which makes its exercise contingent upon the individual’s benevolent impulse and, in this sense, akin to loving-kindness, charity is also a social norm. As righteous justice, it may be enforced without the heart’s cooperation. At its most basic level, charity is not a matter of good will, but an ideal imposed for the sake of equity. In our context, charity involves the allocation of resources for alleviation of the consequences of impairment and maximalization of the disabled person’s potential. Loving-kindness involves the other kinds of caring that are needed to make disabled individuals feel they are dignified and valuable human beings, ranging from the way they are spoken to and of, to making society accessible and involving the disabled in decision-making on matters that concern them.

2 3 4 5

Kadushin, 1964, p. 27. Mishna Peia 1:1; BT Berakhot 5a; Deuteronomy Rabbah 8:1. Moriel, p. 48. R. Eleazar b. Pedat’s opinion in BT Suka 49b. See Rashi ad loc., s.v. ela lefi gemilut hasadim. Likewise, charity is compared to the sowing of seeds whose harvest will depend upon loving-kindness (Hos. 10:12). 6 The minimalistic sense of compassion is reflected in Hillel’s rephrasing of the Golden Rule of Lev. 19:18 as “do not do to others what you would not want them to do to you” (BT Shabat 31a). It can be argued that this does not exhaust Hillel’s views on the subject, and that he also requires positive actions. Hillel’s aphorism, “love all creatures” (Mishna Avot 1:12), is cited in this context, see Federbush, 1964. 7 Moore, 1958, vol. 2, p. 174. 8 Code, Laws concerning Mourning 14:1.

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1. Theology: Imitatio Dei – emulating God in morality The biblical concept of God is linked to charity. God “doth execute justice for the fatherless and widow, and loveth the stranger, in giving him food and raiment” (Deut. 10:18).9 The ideal of acting kindly without expectation of recompense derives from the aspiration to emulate God, which requires one to manifest gratuitous generosity: “How is it possible for man to be called by the name of the Holy One, blessed be He? . . . just as the Almighty is called compassionate and gracious, you too be compassionate and gracious and freely do kindness to all.”10 Man encounters God through engaging in acts of righteousness. What Moses, though he was the “prophet of prophets,” could not behold – God’s face (Exod. 33:20–23) – any person can experience through one generous gesture of charity.11 Doing acts of righteousness and loving-kindness kindles the passion between Israel and God.12 Compassion, expressed in empathy for the weak, the vulnerable, and the disabled through active engagement in acts of loving-kindness and charity, occupies a lofty position in the hierarchy of the precepts.13 Its applicability is as great as the list of human needs. Further, its value is reflected in its enumeration among the things “that man enjoys the fruits thereof in this world, while the stock remains for him in the world to come,” that is, its other-worldly reward does not lessen its benefits here and now.14 Loving-kindness is more precious than all the sacrifices (Hos. 6:6), transcending even charity,15 hence the loss of the Temple need not be seen as religiously catastrophic. The atoning power of loving-kindness makes it a suitable replacement.16 Following the talmudic dictum that Israel is “a forgiving people, a humble people, a kindly people,”17 Maimonides considers the development of a compassionate sensibility a necessary component of Jewish identity, as a mark of the covenant.18 Accordingly, indifference to the needy is a mark of idolatry.19 That

09 This characterization of God also figures in Ps. 132:15; 145:15–16. For praise of the charitable person, see Ps. 37:21; 41:2. 10 Sifre Deut. 49 on Deut. 10:12. See too BT Sota 14a; Midrash Shoher Tov 52. 11 Tanhuma Leviticus 17a. 12 See Song of Songs Rabbah 5:2. 13 JT Peia 1:2; BT Baba Batra 9a. 14 Mishna Peia 1:1. 15 BT Suka 49b. R. Eleazar cites Hos. 10:12 as proof. 16 Avot de-Rabbi Natan (2), 8, 1:4 (4:5). 17 JT Kidushin 4:1 and BT Yebamot 79a (also BT Ketubot 8b and Numbers Rabbah 8:4): “The three identifying marks of an Israelite are compassion, humility, and kindness.” In I Kings 20:31, Ben Hadad’s ministers advise him to surrender, telling him, “we have heard that the kings of the house of Israel are merciful kings.” 18 Code, Laws concerning Gifts to the Poor 10:1, associating tzedaka with Abraham on the basis of Gen. 18:19, as the sign of the righteous man. 19 BT Ketubot 68a. Also BT Baba Batra 10a; Tosefta Peia 4:20; BT Sanhedrin 111b. See Moore, vol. 2, p. 166, note 2.

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such indifference is considered despicable is evidenced by Eliphaz the Temanite’s efforts to explain Job’s horrible suffering in his leaving the poor naked, not giving the thirsty water to drink, denying bread to the hungry, sending away widows empty-handed, and indifference to the fatherless. Job vigorously denies these accusations: “Because I delivered the poor that cried, the fatherless also, that had none to help him. . . . I was eyes to the blind and feet was I to the lame. I was a father to the needy; and the cause of him that I knew not I searched out.”20 Charity calls for the investment of energy, the giving up of one’s property, and the sharing of self. The chronic nature of the needs of the disabled makes it especially difficult: “the poor shall not cease out of the land” (Deut. 15:11).

2. Donor issues Therapeutic intervention is most effective when undertaken early. Often, delay limits options for rehabilitation. Unfortunately, it is easier to find benefactors at a later stage, when the recipient’s condition is acute: compassion is more easily aroused when the situation is desperate. Ameliorating a problem before it deteriorates, however, is recommended as a strategy for rational assistance.21 In his eight-level ranking of modes of charity, Maimonides identifies preventive intervention as the preferred mode of charity.22 In our context, early detection and rehabilitation programs should be given priority. As is generally true of the precepts, the precept of charity does not have to be discharged out of pure, disinterested motives.23 The acceptance of observance motivated by interest makes it possible for many people, probably the majority, to act on halakhic imperatives they might otherwise neglect. This benefits both those who undertake the service of others and the recipients of their largesse. The charitable enterprise is not restricted to those motivated solely by altruism. Charity was originally observed as a family-based precept, with the primary responsibility falling upon the kinship circle. Over the centuries, given changing social conditions, it became clear that the needs of the disenfranchised present a challenge, and mandate a responsibility, that cannot be left to the immediate families of the stricken individuals, but must be shared as a communal enterprise. From earlier efforts to assist the poor and the disabled, often haphazardly organized, came more systematically-responsive institutions that provided not only remedial service, but also research facilities to develop new technologies and treatments. Noteworthy in this transformation were the development of facilities to

20 Job 29:12–16, see also 31:16–22, 29–32. 21 Sifra, Behar, 5 commenting on Lev. 25:35; and see Rashi ad loc. 22 Code, Laws concerning Gifts to the Poor 10:7ff., based on R. Simon b. Lakish’s teachings in BT Shabat 63a and Rashi ad loc. The preferred means of extending charity is the offer of business, since it is mutually beneficial, entailing no loss of face whatsoever. 23 BT Pesahim 8a.

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serve the blind (Vienna, 1872), the deaf and mute (Vienna, 1884), and the mentally impaired. Such collective effort is highly valued in the Rabbinic tradition, which holds the mobilization of community resources to be of even greater import than personal donation. “Greater is the motivator than the doer.”24 The Sages were aware that the cultivation of compassion through tzedaka can also provide the unscrupulous with opportunities for exploiting these feelings: Our rabbis taught: If a man pretends to have a blind eye, a swollen belly or a shrunken leg, he will not leave this world before contracting such a condition. If a man accepts charity and is not in need of it . . . he will not leave the world before he sinks to such a condition.25 The promise of dire consequences need not be taken literally, as noted in previous chapters. In a sense, one who makes himself appear helpless in order to enlist our sympathy is already in need of help. The halakhic culture is not naive, and is aware that the unscrupulous will take advantage of sympathy for the disabled, and that even the disabled themselves may exaggerate their problems for the benefits they can extract from the compassionate. Given the need to conserve limited resources and maintain donor motivation, this issue must be addressed. Should donors become persuaded that they are being exploited, they may use this as a rationale for desisting from giving charity. For the same reason, taxpayers, and those who give to charities, are often suspicious of recipients, and prone to query the authenticity of needs, resenting what they consider to be excessive lifestyles or exaggerated consumption by those benefitting from their largesse. They often fail to take into account the compensatory mechanisms exhibited by those who receive assistance. The Talmud relates how one such case was sensitively handled: Mar Ukba had a poor man in his neighborhood to whom he regularly sent four hundred zuz on the eve of the Day of Atonement. On one occasion he sent it through his son who came back and said to him, “He does not need [your help].” “What have you seen?” [Ukba] asked. “I saw that they were spraying old wine before him.” “Is he so delicate?” [Ukba] said, and, doubling the amount, sent it back to him.26

24 R. Eleazar b. Pedat anchors this teaching in Isa. 32:17: “And the work of righteousness shall be peace, and the effect of righteousness – quietness and confidence for ever,” distinguishing between the act of charity undertaken by the individual, and the collective effort (BT Baba Batra 9a). 25 BT Ketubot 68a. For a parallel, see Mishna Peia 8:9. 26 BT Ketubot 67b.

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Mar Ukba is prepared to accept the recipient’s need to indulge in such spending. In general, wariness of exploitation may foster cynicism and provide a convenient rationalization for not giving – justifying indifference to the needs of others with a clear conscience. It is told of R. Hanina that upon uncovering a scam that had exploited his generosity, he remarked: It is in view of such cases that R. Eliezer said: “Come let us be grateful to the rogues, for were it not for them we would have sinned every day.”27 R. Hanina, knowing that the Bible (Deut. 15:9) admonishes that God is alert to those who wilfully neglect the poor, saw in the extravagances of a recipient of charity a rationalization for avoiding generosity to the poor. The Talmud does not encourage such suspicion, or mandate that the poor must descend to outright penury in order to qualify for charity.28 Screening and monitoring procedures tend to deter those with real need, particularly if they are frail or disabled. So that only the truly entitled will benefit from limited resources, the Talmud notes that applicants for charity must be discreetly and sensitively screened, with due regard for their fragile pride.29 Technical screening procedures must not be allowed to distort or impede the aims of the enterprise; and excessive screening, which may result in neglect of needy individuals, should be avoided. Immediate needs must be tended, and cannot be put off for the sake of carrying out bureaucratic procedures. Distinctions must be drawn as to which cases are pressing, and which less urgent. The Talmud discusses this in several contexts, debating, for example, what constitutes such urgency in the case of food and clothing needs.30 Elsewhere, the Talmud maintains that the alleviation of physical distress must take primacy over psychological considerations.31 Maimonides, in ranking the modes of charity,32 teaches that one should respond kindly even when unable to actually supply a want. It may be frustrating to be unable to respond fully, or to discover that the solution is out of reach. The disabled are a frustrating population to work with: while their need of services remains constant, their conditions may not improve, and may worsen. Yet their needs are real and legitimate. It is hard enough for the disappointed individual to have to accept that only some of his needs can be met. At the very least, he should meet with sympathy and encouragement, rather than exasperation and rejection, from the donor or service provider.

27 BT Ketubot 68a. 28 See BT Ketubot 68a and Peia 8:8 for discussion of the degree of impoverishment necessary to qualify for assistance. 29 R. Abba’s discreet screening methods are noted in BT Ketubot 67b. 30 BT Baba Batra 9a. 31 Code, Laws concerning Gifts to the Poor 7:6 records this ruling, adding, as does Rashi on BT Baba Batra 9b, s.v. lekhsheyerae lekha, that investigations should be undertaken to screen out fraud. 32 Code, Laws concerning Gifts to the Poor 10:13.

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R. Shabtai b. Meir Hacohen, the Shakh, distinguishes between instances where resentment is experienced by the donor but not disclosed, and those in which it is expressed to the recipient. In the former, the giving still qualifies minimally as charity. But if resentment is expressed, even by so much as a sullen look, the gift is not accounted even minimally as charity.33 The structure of the charity relationship is inherently asymmetric: the donor is in a position of power; the recipient is beholden, disempowered by his need. Nevertheless, the transaction must ideally be carried out so that the essential “equality of the giver and receiver is acknowledged.”34 Both, after all, share in the “image of God,” and the recipient’s dignity and self-respect must not suffer. It is all too easy for one in the superior position of relative self-sufficiency to offer advice and criticism to his fellow who has lost it.35 Paternalism, the benefactor’s presuming to know better than the beneficiary, must be minimized, and the recipient’s autonomy and dignity preserved as much as possible. Scripture refers to a poor stranger as “thy brother,” (Lev. 25:35). Hard though it may be to feel kinship with strangers, successful aid may depend upon deepening one’s sense of affinity with the recipient of assistance, and communicating this during the interaction. A high level of responsiveness is hard to sustain in chronic situations, as in the case of the permanently disabled. The need to insist that “thou shalt not harden thy heart” (Deut. 15:7) shows that this is likely, since responding on an ongoing basis is tiresome and frustrating. There is, nonetheless, an obligation to be responsive even when a request for aid has already been granted: “Whence do we know that even if you opened once you must open even one hundred times [if need be]? Therefore Scripture says, Thou shalt surely open thy hand unto him (Deut. 15:8).”36

3. Recipient issues Just as the donor’s compassion can be a cover for control and paternalism, so there is a risk of the recipient’s acceding to over-dependence, not to speak of outright exploitation, in the guise of need. However, more serious is the reverse situation: reluctance to admit to need. Certainly, a needy or disabled person’s motivation to maintain pride in himself via self-sufficiency, however strained his resources, should be nurtured. Hence, Maimonides concludes his halakhic codification of the laws of charity by lauding those who are able to maintain economic independence by pluck and forbearance.37 But while the drive to self-sufficiency

33 Siftei Cohen on Shulhan Arukh YD 249:3. 34 Neusner, 1990, p. 13. 35 An anecdote in the Talmud describes Rava’s unfairly lording it over an indigent, see BT Ketubot 67b. 36 Sifre Deut. 116. This is inferred from the redundant “open” in the phrase patoah tiftah (literally, “you shall open, open your hand”). 37 Code, Laws concerning Gifts to the Poor 10:19, based on BT Pesahim 112.

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and independent living is healthy, this pride must have limits. If one in dire need is too proud to accept assistance, he is considered insufferable and tantamount to a murderer. “It is forbidden to take pity on him,” because “since he took no pity on himself, he would undoubtedly have shown no pity to others.”38 Loving others is only possible for one who loves himself.39 Knowing how to accept assistance graciously when there is genuine need is a moral imperative no less than taking responsibility for others. Exaggerated pride is akin to idolatry: rejecting assistance through God’s human agents is, in a sense, tantamount to denying the loving nature of God. Both he who is remiss in giving charity, and he who refuses to accept it, are guilty of this denial.40 Outside aid, by its very nature, fosters uneasiness. Recipients often feel threatened, and fear loss of control over their lives. There is a controversy between R. Meir and the other Sages on the correct strategy for offering assistance to those reluctant to accept it.41 R. Meir opposes the inclination to take over the recipient’s decisionmaking, arguing that the recipient has a right to his own choices. Even if benevolent, the paternalism reflected in the position of the other Sages seems incompatible with the ethical imperative of maintaining the recipient’s dignity as much as possible. Readiness by others to render assistance is no justification for relinquishing responsibility for oneself. Individuals must be encouraged and even pressured to maximally utilize their own capabilities.42 The recipient of charity must continue to make efforts on his own behalf.43 One way to foster respect for resources, as well as to reinforce self-respect among recipients of charity, is to encourage, or even require them to contribute.44 Mar Zutra argues that however poor he is, one who is himself involved in helping others, will in an important sense feel redeemed and dignified.45 To deny anyone the opportunity, or the obligation, to help others, is to deny his humanity.46

38 JT Peia 8:9; Code, loc. cit. 39 Hayekha kodmim, “your life comes first.” This is R. Akiba’s opinion as against Ben Patura, who holds that in a situation where there is only a small amount of water and two people, it is “better that both should drink and die rather than that one should behold his companion’s death,” BT Baba Metzia 62a (also Sifra, Behar, 5, and Midrash Hagadol on Lev. 25:35). 40 On the connection between indifference to others and idolatry see R. Joshua b. Korha’s view in BT Ketubot 68a. 41 BT Ketubot 67b. 42 See the teaching of Rabbah b. Mari, transmitted via Rava, at BT Baba Kama 92b, “If you join me in lifting the burden I will carry it, if not, I will not!” 43 Kli Yakar on Exod. 35:5; see Mekhilta de-Rabbi Shimon b. Yochai and Midrash Hagadol on Exod. 23:5. 44 Maimonides actually rules that this is obligatory for the poor, in Code, Laws concerning Gifts to the Poor 7:5, as does Shulhan Arukh YD 248:1. Siftei Cohen ad loc. exempts abject paupers from this obligation. Also see Tosefta Peia 4:10. 45 BT Gitin 7b, based on a clever reading of a biblical verse (Nahum 1:13). 46 “Even the lowliest person is moved to kindness [hesed ] . . . the drive to help the other is in the very nature of man, even the lowliest” (commentary of R. Jeroham Levovitz of Mir, p. 338).

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These questions have direct bearing on the situation of the disabled. They too are caught between humility and pride. They must cultivate humility if they are to be comfortable with a certain measure of dependency, since they, of necessity, must rely on the assistance of others. Exaggerated pride impedes the development of a cooperative relationship with those who provide this aid. At the same time, their need to maintain their self-esteem is equally important, strengthening their motivation to be enabled to do as much as possible for themselves and to receive the needed assistance in a dignified manner consistent with their self-esteem. Reinforcement of self-help efforts and encouragement of participation in decision-making by the disabled is thus of particular importance. Expecting and encouraging those with disabilities to come to the assistance of those who are even less capable than they are, can help transform their sense of dependence and inferiority into one of partnership and shared responsibility.

4. Aid By law, assistance must be rendered to raise a fallen animal. The Sages limit the obligation to respond to immediate encounters: “If thou see the ass of him that hateth thee lying under its burden . . . thou shalt surely release it with him” (Exod. 23:5). Perhaps even from a distance? Scripture teaches, “If thou meet thine enemy’s ox or his ass going astray, thou shalt surely bring it back to him again” (Exod. 23:4). Perhaps literally “meet” [i.e., bump into him]? Scripture teaches, “If thou see.” What kind of seeing constitutes “encountering”? The Sages estimated it as any sighting at 1/7.5 of a mil (133 meters).47 The Sages are articulating the difference between abstract awareness of someone’s need and concrete concern about it. It is difficult to assess the boundaries of our moral sensibilities. When can or should one take a problem personally and become involved? At what proximity does someone become one’s neighbor? Social and psychological factors are significant in determining how to assign priority to cases in which assistance is required. The Talmud uses the social reality that remaining unwed is a greater stigma for a woman than for a man, though the actual financial need of the two may be the same, to determine priority of response: “the female orphan is to be enabled to marry first and the male orphan is married afterwards, because the shame of a woman is greater than that of a man.”48 The types of assistance one must extend, in complying with the requirements of charity, depend on the particular needs to be met, which are by no means uniform. Commenting on the verse, “if thy brother be waxen poor” (Lev. 25:35), one

47 BT Baba Metzia 33a. 48 BT Ketubot 67a.

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midrash observes that there are eight designations given to the poor, reflecting eight nuances of need: wretched, needy, miserable, helpless, impoverished, oppressed, humble, and dependent. It points out that “needy” (evyon) comes from the same root as “to crave” – ”He is called ‘the needy one’ because he craves everything.”49 The richly varied terminology for the poor employed by Scripture, and noted by the midrash, evidences awareness that poverty is not a monolithic phenomenon, but is experienced differently by different people, and even within a given individual, there is a range of modalities of need and suffering.50 Given these different qualities and intensities of need, different levels and qualities of response are called for. The phrase “sufficient for his need in that which he wanteth” (Deut. 15:8), invites hermeneutic reflection on what it is that a person needs. With respect to the disabled, what constitutes the minimum for a dignified life is not self-evident; further, needs are difficult to individuate – the Talmud notes that the obligation to provide housing and furnishings derives from the primary obligation to provide a spouse.51 The Talmud also identifies another dilemma: how to balance satisfaction of the individual’s often idiosyncratic needs with the equitable distribution of scant resources. The principle of equal treatment works only when the problems being addressed are exactly commensurate. But of course, although we make this assumption in practice, we do so for lack of resources or energy to respond to the endless individual differences. This does not change the reality that “while disabled people have similar problems . . . the meaning of a given disability is not the same to all who are limited in similar ways.”52 If responsiveness via charity is to be just and humane, it should, in principle, take into account the highly idiosyncratic character of needs; to disregard this by assuming standard needs, is to further dehumanize human suffering. Even if they cannot be met, due to practical considerations, expression of the unique needs of those who come for help should be encouraged.53 While it is a truism that donors are urged to give more, the converse is also important: recipients are urged to make do with less, to adjust to their circumstances. This is addressed in a talmudic anecdote where a donor without means, R. Nehemiah, meets a recipient who has not adjusted his standard of living.54

49 Leviticus Rabbah 34:6. 50 Among the archetypical modes of poverty, there is an acknowledged hierarchy of wretchedness – the “needy” must be given priority, because their suffering is most intense, see Sifre Deut. 116 on Deut. 15:7–11; Moriel, p. 73, n. 3. 51 BT Ketubot 67b. 52 Locker, p. 196. 53 For further discussion, see my “Priorities in Tzedaka . . .,” esp. pp. 85–7. On Rabbinic anticipation of contemporary views on welfare, see Morris, 1986, p. 75. 54 BT Ketubot 67b.

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The gaps between objective and subjective requirements make satisfactory dispersal of charity difficult to achieve. Benefactors are never quite sure if they have assessed the need correctly; recipients are frustrated in that they are ministered to in terms of criteria not always attuned to their specific needs. There is apprehension that responsiveness will condition the recipient to habitual dependency. Building a degree of frustration into the enterprise is a kind of protection against such habituation. The inability to resolve this dilemma leaves the process of giving charity inherently unsatisfying: the beneficiary feels that his needs have not been met, the benefactor, that he has not done enough. Disability is an almost paradigmatic example of neediness. Assisting the disabled where they cannot help themselves does not exempt them from self-reliance where possible. The laws of charity suggest provisions to prevent the erosion of autonomy despite the dependence inherent in disability.

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In this chapter we discuss laws indicative of attitudes to the disabled, specifically, those pertaining to overcoming estrangement, limits of caring, and the role of liturgy in promoting sensitivity to and identification with the disabled.

1. Overcoming estrangement Recitation of the priestly benediction (birkat kohanim), originating in the Bible,1 is generally referred to as duchenen, a Yiddish verb based on the Hebrew noun duchan, platform, from which the priest in the Temple used to deliver the blessing.2 It assumes division of the congregation into the priests (kohanim) who deliver the blessing,3 and the Israelites, including the Levites, who receive it. It is a great honor to participate as a kohen. In Israel, this ritual is observed every day; in the Diaspora it is reserved for the festivals and High Holy Days.4 Since this is a public ceremony of great solemnity, there is concern about maintaining the congregation’s concentration. Hence, in addition to disqualification of kohanim for serious moral lapses, there is also disqualification for physical deformities that might distract the community: “A priest whose hands are deformed should not lift up his hands.”5 And, “R. Judah says: Also one whose hands are discolored with a red dye should not lift up his hands because this makes the

1 See Num. 6:24–6 on “raising the hands” (nesiat kapayim). 2 Mishna Midot 2:6; Mishna Tamid 5:1, 7:2; Mishna Sota 7:6; BT Megila 18a. 3 BT Hulin 49a (cited in Code, Laws concerning Prayer 15:7) and JT Gitin 5:9 (cited in Arukh Hashulhan OH 128:51). In Mishna Rosh Hashana 3:8, the efficacy of Moses’ upraised hands in the battle against the Amalekites (Exod. 17:11) is attributed to God. 4 See Mishna Taanit 4:1. 5 Mishna Megila 4:7. Similarly, Tanhuma, Toldot, 7 teaches that while he may lead in the recitation of the abridged ‘Shema,’ the blind person is disqualified from participating in the priestly benedictions.

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congregation look at him.”6 From the disqualification of any priest with dye on his hands,7 it is clear that this is not a judgment on the spiritual competence of the priest, but only a concession to the congregation’s propensity to be distracted and to stare at the kohanim during the benediction, though this is not permitted.8 The Talmud extends the disqualification to deformities of the face and feet, blindness in one eye, and runny eyes.9 On one opinion, even inability to pronounce the “aleph” and “ayin” sounds distinctly is grounds for disqualification.10 Note that a disqualified priest is not disqualified from attending the synagogue as a worshipper.11 This is not a trivial matter; prayer, too, requires attention (kavana). The interests of the priest must be balanced against consideration for the other worshippers. However, the Talmud limits these disqualifications to communities unaccustomed to the presence of such kohanim. Once the community has grown accustomed to them, these blemishes are not grounds for disqualification, as they no longer distract.12 R. Huna’s disqualification of a priest with an unusually downy beard despite his being a familiar figure was challenged; R. Mana conjectured that it related to an unusually short person, and was established so that people would not gain the incorrect impression that a minor may participate,13 showing the wholly pragmatic character of the disqualification.14

06 Tosefta Megila 3:29. Tosefta Sota 7:8 disqualifies visible deformities only on the face, hands, or legs, whether the blessing takes place in the Temple or outside. See Sefer Hahinukh, p. 148. 07 Arukh Hashulhan, OH 128:44, explains that this disqualification is due to the distraction and does not follow from the biblical disqualification of blemished priests from the Temple service, adducing BT Taanit 27a; and see Turei Zahav on Shulhan Arukh OH 128:27. 08 Especially when the Ineffable Name of God was pronounced, see BT Hagiga 16a. Rashi, s.v. umevarkhim explains that “the Divine Presence resides, so to speak, in the joints of their fingers.” Maimonides, however, stresses concentration, see Code, Laws concerning Prayer 14:7. 09 BT Megila 24b; also JT Taanit 4:1, 16a; and JT Megila 4:8, 32b. 10 A difficulty prevalent among the people of Beth Shean. Similarly, inability to enunciate distinctly the consonants “het” (guttural) and ‘hei’ (soft) sufficed to disqualify. Maimonides extends the talmudic disqualification of those who cannot distinguish “aleph” and “ayin” vocally to those whose speech is not intelligible, see Code, Laws concerning Prayer 15:1. Kesef Mishne identifies this impediment with those who cannot pronounce the “sh” sound, pronouncing the word shibolet, sibolet. This disqualification is not reversible through familiarity, since it is not explicitly mentioned by the Talmud, see note 12. 11 Responsa Haim Shaal 1:74, par. 28, citing Responsa Tzemah Tzedek #50. 12 Rashi, BT Megila 24b, s.v. dash beiro hava. Tosafot ad loc., s.v. im haya, have been interpreted as allowing one with any deformity, however unusual, the possibility of accommodation in his particular community. This view is not accepted by Maimonides, who only allows rehabilitation through familiarity for the cases specifically noted by the Talmud. 13 See Korban Haeida on JT Megila 4:8, s.v. ragla; nevertheless, one wonders why here too, familiarity would not make such an error unlikely. 14 Some, however, argued that the disqualification is due to the fact that these physical imperfections reflect an imperfect soul, e.g., Philo (De Monarchia 2:5), and Kli Yakar on Lev. 21:17.

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These specifications are codified by R. Joseph Caro, who defines the term of residence that suffices to overcome estrangement: But if he is a familiar sight in his locale, so that people are used to him and everyone is familiar with his blemish, he may give the priestly benediction, even if he is totally blind. Presence of thirty days establishes status as a familiar sight in a locale, meaning the city where he resides, but if he visits another city and chances to stay there thirty days he may not [give the priestly benediction]. Even if he did not come to dwell as a resident, if he came to teach, or as a scribe, or for a year or a half year’s employment, this qualifies him as a familiar sight within thirty days.15 Note that Caro explicitly includes the totally blind, though the Talmud only makes accommodation for an accustomed priest blind in one eye.16 If the priestly benediction is construed as a biblical precept, Caro’s inclusion can be maintained only if the totally blind are held to be biblically obligated, a controversial position. On the other hand, even if the blind are only Rabbinically obligated to discharge precepts, it may be that the precept of the priestly blessing is now, in the absence of the Temple service, also only of Rabbinic status.17 Under the principle of parity of obligation, discussed above, because the priest, discharging his duty in blessing, and the congregation, discharging its duty in receiving the benediction, are obligated to the same degree, there is no reason to disqualify the priest. R. Jacob Emden rules that even a one-eyed priest should not take part, even if one maintains, with R. Meir, that the blind are biblically obligated to observe all the precepts. He argues that the dignity of the congregation is violated by this participation, a point not raised in the Talmud. Though respectful of R. Joseph Caro’s view, he argues that “the master of the Shulhan Arukh relied on his own judgment alone, without any textual support from others, in ruling that one who is blind in both eyes is fit to take part in the priestly blessing, and so establishing the law.”18 In an interesting addendum on the legal standing of the blind, he argues that even according to the view of the Tosafot that the Sages ordained obligation for the blind so that they would not, like the Gentiles, be bereft of precepts,19 this

15 Shulhan Arukh OH 128:30. 16 And the Code, Laws concerning Prayer 15:2 only allows the one-eyed priest. Kesef Mishne ad loc. wonders whether the whole discussion regarding blemishes on the hands or face is not moot now, given that the practice is to cover the entire upper part of the body with the talit, prayer shawl, so that no one can see it anyway. 17 The priestly benediction is, on this conjecture, construed as part of the Temple service which, like the sacrifices, acquired non-biblical status upon the destruction of the Temple. 18 Responsa Sheeilot Yavetz 1:75. 19 BT Baba Kama 87a s.v. vekhen.

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refers only to biblical precepts and does not extend to Rabbinic legislation, since “they did not legislate Rabbinic enactment upon Rabbinic enactment.”20 Since the priestly blessing in our day is, according to Emden, only of Rabbinic status, it is not required of the blind, who, he rules, following R. Judah in the Mishna, are exempt from all the precepts. He adduces the Mishna as a textual basis for his view: “the blind do not read the Torah or take part in the priestly blessing.”21 Why allow recitation of a benediction in vain by one not obliged to recite it? Given Emden’s strong opposition, one appreciates the import of Caro’s inclusive ruling, which applies the talmudic insight that familiarity lessens curiosity. Fostering reverence is impeded by distraction. The capacity for the community to eventually accommodate differences allows previously disqualified priests, disabled or otherwise unconventional in physical appearance, to again proudly participate in the solemn ritual. Through exposure to those with disabilities, the community can be educated to accept them. How well the disabled will function within a community depends upon its adjustment to their disabilities, and the abatement of fears regarding the impact of their participation. Opposing R. Jeruham, who disqualified the completely blind from taking part in the priestly blessing, R. David b. Zimra (Radbaz) demurs that the blind are obligated.22 Only in very specific matters requiring vision are they disqualified and exempted. He asserts emphatically that the covering of face and hands with the prayer shawl removes any objection based on the fact that the totally blind might be a distraction, and states that where blindness is common, it no longer distracts. Were people to become familiar with unusual speech patterns and similar disabilities not mentioned in the Talmud, would it be possible to re-empower these individuals on the basis of the principle used by Caro? This question awaits the consideration of contemporary legal authorities. Recently, R. Moses Feinstein addressed the religious obligation of an amputee kohen with prosthetic legs.23 When he removes his shoes, as required,24 the prosthesis is obvious and people not accustomed to it are likely to be distracted. Can

20 takanta letakanta lo avdinan, given that the primary enactment came to cover a lacuna in the biblical law; see BT Baba Metzia 5a. 21 Megila 3:7 (4:7). Note that he does not argue that the blind would be violating the law by reciting by heart that which appears in writing and must therefore be read out of the text. He refrains from so arguing since it is the custom that the priestly benediction is recited by heart even by the sighted, despite the scriptural text of the benediction. 22 Radbaz, responsum 1:39, in accordance with R. Meir’s view on the obligation of the blind to observe the precepts. 23 Responsa Igrot Moshe OH 2:32. 24 BT Sota 40a, on the ordinance of R. Johanan b. Zakai. The ritual of the priestly benediction requires that the kohen be barefoot to avoid public suspicion of the kohen’s lineage. His stopping to tie a loose shoelace might be interpreted as reluctance to perform the ritual, giving rise to speculation, for example, that he is a halal, offspring of a prohibited marriage between a kohen and a divorced woman. Though far-fetched, to avoid embarrassing situation, the Sages called upon all kohanim to remove their shoes.

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such an individual participate in the blessing? R. Feinstein permits his participation, on the grounds that it is not significant enough to distract the community, since they are cognizant of the nature of his disability. Nor is it novel for those already used to seeing him with his prosthesis. He thus sympathetically extends the concept of familiarity (dash beiro). He extends this further to a kohen who wears his shoes while participating because taking off his shoes is either impossible or would make his prosthetic limbs visible. Were he to remove his shoes, the congregation would be distracted and that would constitute a more serious breach than disregarding the Rabbinic ordinance about the removal of shoes. Therefore, R. Feinstein rules that such a kohen need not remove his shoes and is not disqualified.25 Although R. Feinstein never mentions including the disabled kohen as an explicit motivation for his ruling, which is based on formal halakhic grounds, compassionate interest in the disabled kohen’s inclusion is nonetheless implicit in the discussion, since one could just as plausibly have argued for disqualification on the grounds that a participant with prosthetic legs, conspicuously wearing shoes, would be a distraction.

2. Limits of caring for incapacitated relatives It is important to acknowledge that there are limits to what can be expected of those who interact with disabled persons. To deny this is as counter-productive as concealing the disabled behind a veil of inaccessibility. This issue arises regarding the care of aging, often disabled, parents. Accommodating a disabled parent requires serious adaptation by members of the immediate family, who frequently have to carry out therapeutic treatments as well as coping with the constraints mandated by the disability. This takes its toll on the emotional and physical capacities of the able-bodied. The Rabbinic explanation of the biblical teaching on charity, “thou shalt surely open thy hand unto him” (Deut. 15:8) – “even one hundred times,”26 applied to the constant interaction with disabled family members, takes on special meaning. Reaching the limits of their emotional capacity poses a dilemma for the caring family members: it can be misunderstood as implying a limit to their love. But sometimes care must be delegated to others, in institutional settings. The legal aspects of this issue are debated by Maimonides and R. Abraham b. David of Posquieres (Rabad); although the discussion is about elderly parents, it is equally applicable to the disabled.

25 See Nishmat Avraham, OH, pp. 70–4, on the possibility of participation for those who cannot stand, those with quivering hands, amputees, the hard of hearing, hermaphrodites or those of unidentifiable gender. One suggested strategy in cases of doubt is to allow participation in the priestly blessing, but without recitation of the introductory benediction, and have it recited by another kohen. 26 Sifre Deut. 116 ad loc.

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In caring for aging or disabled parents’ basic needs, the question arises: who is primarily responsible, the family, society, or both? The primary biblical text, the commandment: “Honor thy father and thy mother” (Exod. 20:12), is interpreted by the Sages to mean physically caring for one’s parents. Exploring the extent of this precept, as when parents make exorbitant and erratic demands, R. Eliezer asserts that “even if the parent throws one’s wallet into the sea, yet the child may not humiliate the parent.”27 But what if one cannot live up to this demand, or is limited in his ability to care for his parents due to their physical or mental disability? One of the Sages, R. Asi, who lived in Babylonia, fled out of frustration with his aging mother: She said to him, “I want ornaments.” So he made them for her. . . . “I want a husband as handsome as you.” Thereupon he left her and went to the land of Israel.28 Maimonides counsels: If the mind of his father or his mother is affected, the child should make every effort to indulge the vagaries of the stricken parents until God has mercy on them. But if their condition grows worse, and the child is no longer able to endure the strain, he may leave them, go elsewhere and delegate to others the task of giving them proper care.29 Maimonides requires that the family strain to meet the needs of the relative, and make the necessary adjustments. As befitting those bound by the covenant, compassion is to be stretched to its limits. Does Maimonides restrict this ruling to parental mental incapacitation, given his words “where the mind of his father or mother is affected,” or, is the care provider’s inability “to endure the strain” the principal consideration?30 Rabad takes exception: “if he goes and leaves the parent, whom will he charge with the parent’s care?”31; he implies that there is no suitable substitute. In

27 BT Kidushin 32a. 28 BT Kidushin 31b. 29 Code, Laws concerning Rebels 6:10; Kesef Mishne ad loc. explains that Maimonides’ ruling is based on the episode of R. Asi. 30 “Old age and the normal infirmities that may accompany it do not provide sufficient reason for transferring this obligation” but, “every mental disturbance must be initially dealt with until filial tolerance is exhausted due to the parent’s extreme condition. This condition must be chronic and irreversible” (Meier, p. 82). Meier reads Maimonides restrictively, citing R. Waldenberg, Responsa Tzitz Eliezer, 12:59. See S.Y. Cohen; Ilani and Weinberger; and M. D. Gross. 31 Hasagot Haravad, on Code ad loc.

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defending Maimonides, Shem Tov b. Abraham ibn Gaon spells out the Rabad’s concerns: I am amazed that such a remark was uttered by the Rabad, since it is a common occurrence, as we learn at the beginning of tractate Kidushin. What I think bothers Rabad is that the son takes care of the parent without payment while another does it for a fee. Furthermore, with the son, the father and mother are more free to speak their minds, while with a guardian who is a stranger, they are inhibited.32 Despite his acknowledgment of these considerations, he argues that an outsider can do for a parent what the child cannot.33 Is Rabad’s critique limited to the care of parents, whom one must “honor,” or does it also apply to other disabled relatives? If limited to the care of parents, presumably his stance would be closer to that of Maimonides regarding other cases. Maimonides allows for a realistic assessment of the care provider’s psychological and perhaps physical capacities, balancing this against the well-being of the afflicted; Rabad is more concerned about the psychological needs of the patient. Immanuel Jakobovits emphasizes that the abandonment of one’s parents, especially if extremely disabled, is unthinkable, despite R. Asi’s apparent conduct, even according to Maimonides, citing the “brutality, starvation and indignities” which until recently have been the lot of the institutionalized mentally disabled.34 Yet therapeutic and rehabilitative needs often make home care simply impossible regardless of the capacities of the relatives.35 Rabad’s view is a reminder that ongoing personal involvement with disabled persons, even if not at home, makes a real contribution to their well-being.36

3. The role of liturgy Liturgy is clearly central to worship; it also expresses religious sensibilities and fosters desirable ethical perspectives. To the average worshipper, the liturgy in the

32 Migdal Oz on Code ad loc. 33 R. Joshua Falk’s Derisha (on Tur, YD 240:2) and R. David Halevi, the Taz (on Shulhan Arukh YD 240:14) follow the Rabad. However, Nishmat Avraham 240:5 contends that were the Rabad to encounter certain contemporary situations, he would modify his position to favor care by professionals. 34 Jakobovits, p. 118. 35 See Nishmat Avraham, YD 240:5, p. 148, n. 5. 36 For a halakhic view on the involuntary institutionalization of relatives in unmanageable situations, see G. Rabinowitz, “The Obligation . . .,” where citations from the rulings of the major authorities show great flexibility, taking particular account of the effect of the parent’s presence on the other spouse. For example, the Rashba admonishes a husband not to force his aging mother on his wife if he knows it will cause strife (Responsa, 4, #168).

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prayer book is more familiar than are the Bible and the Rabbinic literature. Though drawing heavily on these sources, the prayers and benedictions are primarily of independent composition, and reflect the attitudes and values of the community. One type of prayer is the blessing or benediction, of the form, “Blessed art Thou . . . King of the Universe, who has . . ..” Benedictions are recited over a wide range of matters, from biological functions to emotions and objects of aesthetic appreciation or wonder.37 There are three main types of blessings: 1

2 3

Those that introduce and generally precede the observance of a religious precept (birkat mitzva). An example is the blessing recited before lighting Sabbath candles. Blessings that introduce and precede actions of bodily enjoyment (birkat hanehenin). An example is the blessing recited before eating bread, “Hamotzi.” Blessings of praise, recited only upon undergoing certain experiences, for example, the benediction of deliverance (“Hagomel”) after a danger or illness, or that recited upon learning of a relative’s death (“Dayan Emet”). Such blessings express gratitude and acceptance.

3.1. Benedictions upon encountering disability Benedictions are to be made upon encountering someone with a disability. The Mishna teaches that “upon seeing pock-marked persons, one says: “Blessed be He who makes creatures different (meshane habriyot),” while a baraita teaches that if one sees a black, a very red or a very white person, a hunchback, a dwarf, or a dropsical person, he says: “Blessed be He who makes creatures different.” But if he sees one with an amputated limb, or one who is blind, or flatheaded, or lame, or smitten with boils, or pock-marked, he says: “Blessed be the true Judge (dayan haemet).”38 What is the appropriate benediction upon encountering a pock-marked person? Is it “who makes creatures different” or “the true Judge” (the latter generally recited in circumstances such as the death of a relative)? The Mishna and baraita seem to contradict each other. Existentially, we might ask whether the pockmarked person is a curiosity, arousing wonderment, or a tragic figure arousing pity and commiseration.

37 Mishna Berakhot chapter 9. 38 BT Berakhot 58b.

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The distinction is applicable to other disabilities as well. Maimonides rules as follows: On seeing . . . anyone unusual in facial appearance or the configuration of his limbs, one says, “Blessed art Thou . . . who makes creatures different.” On seeing a blind person, a disabled person, one afflicted with boils, or pock-marked, etc., the blessing is, “Blessed art Thou . . . the true Judge.” If the affliction is congenital, the blessing is “. . . who makes creatures different.” On seeing an elephant, an ape, or an owl, one says, “. . . who makes creatures different.”39 A distinction is made between congenital disability (“who makes creatures different”) and acquired disability (“the true Judge”). “The true Judge” is recited upon encountering one who has become disabled, in acknowledgment of the tragedy experienced by that person, who must try to accept, if not justify, God’s ways. The other blessing, “who makes creatures different,” is said regarding one who has never experienced life other than as disabled; such an individual has, over the years, come to terms with his condition, which he accepts as a constraint within which he must fashion a satisfying life. From his perspective, his condition is a given, and it is this perspective, that of the disabled individual, that directs the liturgical response of the able-bodied. While it can be argued that liturgically calling attention to the disabled is problematic, it cannot be denied that it forces the congregation to acknowledge them and thus serves to mitigate indifference to their plight. 3.2. Novelty The benediction “who makes creatures different” is effective only if recited when there is a real sense of the unusual. Thus Meiri notes: “the great commentators explained that one only recites these blessings the first time one sees these people. And I think, also if one sees them at infrequent intervals.”40 When an experience loses its unusual character due to habituation, it is no longer edifying to recite the benediction. Its recitation is a measure of the degree to which able-bodied and disabled people interact. Meiri rejects the opinion that this blessing expresses empathy with tragedy: They wrote that this was required only of one who is troubled by their deformities, like one who, seeing wondrous creatures, enjoys the experience. But I disagree. Experiencing new things, without necessarily enjoying or being troubled by them, is worthy of a blessing.

39 Code, Laws concerning Benedictions 10:12. 40 Meiri ad loc.

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Clearly, what is evoked is not aesthetic appreciation for the “uniqueness” of a deformity, as can be seen in the Talmud’s distinction between aesthetic appreciation and mere wonder. Upon seeing beautiful creatures and beautiful trees, one recites: “Blessed . . . who has such in His world,” whereas in wonderment of the unfamiliar one recites: “Blessed . . . who makes creatures different.”41 This benediction is inspired by the strangeness or newness of the experience, curiosity, and wonder at the variety of different forms of life that God has brought into being. Maimonides also applies it, as does the Talmud, to unusual wildlife, without evaluating the phenomenon. A novel form of being is a matter for curiosity, but also provides new insight: we “open our heart” to that which differs from our able-bodied experience. Phenomena such as disabilities are worthy of attention, providing insight into the diversity and challenges God has created. The liturgy thus calls upon the able-bodied to overcome the fear and possible alienation that the encounter with the disabled might ordinarily arouse. In blessing God for the experience, we signal our acceptance of all His creatures.

3.3. Liturgical thanks for not being disabled The morning liturgy in the daily prayer book,42 begins with a litany of benedictions, including one expressing gratitude for physical wholeness and capacity: When he hears the cock crowing he should say: Blessed is He who has given to the cock understanding to distinguish between day and night. When he opens his eyes he should say: Blessed is He who opens the eyes of the blind. When he stretches himself and sits up, he should say: Blessed is He who loosens the bound. . . . When he draws himself up he should say: Blessed is He who raises the bowed. . . . When he begins to walk he should say: Blessed is He who makes firm the steps of man. This appreciation of being able to enjoy the gifts of hearing, seeing, erectness and walking, reveals awareness of the possibility of disablement. These gifts are not to be taken for granted.43 One view holds that these blessings were originally intended as home liturgy to be recited each day upon rising and re-experiencing one’s capacities. The blessings

41 BT Berakhot 58b. 42 Based on BT Berakhot 60b. 43 Whether the disabled are excluded from the recitation of a particular blessing by virtue of its irrelevance in their particular case is another question, which will be taken up in Chapter 8.

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were to be linked to the specific experiences they refer to.44 It is legitimate for those who are whole-bodied, sighted, and stand erect to privately express gratitude for these gifts. One who is disabled is, of course, not required to recite these benedictions, as they do not mirror his experiences.45 The view of the Geonim, R. Natronai, R. Amram, and others, however, is that these blessings express appreciation of reality in general (minhago shel olam) and not personal experiences. They are therefore to be recited publicly without connection to particular activities of individuals in the congregation.46 On the basis of the second view, these blessings are fixed in the public daily morning liturgy. Yet even if understood as expressing awe at God’s creation, they cannot but offend the disabled in attendance, whose disabilities are singled out in their presence. This seems somewhat callous, for the law generally prescribes sensitivity on such matters. Reminding the proselyte of his former life is considered a transgression termed “verbal oppression” (onaat devarim).47 Similarly, one may not observe precepts such as the donning of phylacteries in cemeteries,48 so as not to “mock and humiliate” (loeg larash) (Prov. 17:5) the deceased, who are incapable of doing likewise.49 How, then, is the public recitation of these benedictions regarding disability justified? The offense is underscored when we recall the view that, in principle, the individual must have experienced the benedictory events. One could argue that even the disabled benefit from the fact that at least some are blessed with these faculties, because, by utilizing their faculties, they can provide services to the disabled, generating a kind of vicarious experiencing of those

44 Code, Laws of Prayer 7:7–9, Kesef Mishne ad loc., Shulhan Arukh OH 46:8, Yabia Omer 5, OH 10. 45 One might ask: why not compose prayers that are especially suitable for recitation by the disabled? Why not express gratitude over the heightened senses by which they often compensate for their disabilities? See BT Berakhot 58a and BT Ketubot 60a for talmudic examples. Since, for example, the blind are often attuned more acutely to touch, why not express this in a prayer, “who makes seeing through touching”? Or for the deaf, “who makes hearing through sight,” as in lipreading or sign language. The possibility that auditory experiences might be accessible by visual perception, and the reverse, is raised in Mekhilta De-Rabbi Ishmael, Bahodesh, Yitro, par. 9 (Friedman edition p. 71a; Horowitz edition p. 235; Lauterbach edition, vol. 1, p. 266). R. Akiba states that at Sinai, “they saw what was audible and heard what was visual.” These speculative reflections should be considered by those who are becoming conscious of the extent to which the disabled have been excluded, even if only inadvertently, from active participation in religious ritual. 46 Ran, on BT Pesahim 7a, in the name of Nachmanides, concurs, as does Rosh (see his gloss on Berakhot chapter 9, at the end of Section 23, commenting on the blessing “who gives to the cock understanding.” Rema, on Shulhan Arukh OH 46:8, concurs. Pri Hadash ad loc. argues that the morning blessings do not depend on one’s personal situation, in fact or in principle. I discuss these benedictions from the perspective of the disabled below, in Chapter 8. 47 BT Baba Metzia 58b. 48 Shulhan Arukh OH 45:1. 49 BT Berakhot 18a, Sota 43b, Menahot 41a; JT Berakhot 2:3 (14b), Taanit 4:5 (21b); Mekhilta Bo, Pas-ha, 13; Song of Songs Rabbah 31:15.

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faculties by the disabled.50 Alternatively, one could argue that, institutionalized, the benedictions become expressive of the experiences of the collective, not of its individual members, hence the disabled, as members of the group, can identify with the blessings. On this conjecture, the disabled transcend their individual experiences and, as human, are grateful for human faculties.51 An analogy might be the transcendence of personal grief when the festive spirit of a holiday overlaps a time of personal mourning. The law requires deferring grief, even, some argue, the inner experience, until after the holiday.52 One might object that mourning, unlike disability, is a temporary state. A mourner may fairly be asked to transcend his transient existential state, for the sake of the community, whereas the situation is much different for one with a chronic disability. One might counter by arguing that grief is most intense at the time of death. It is therefore unfair, even cruel, to defer its expression at that time, while to require of one who is chronically disabled to transcend his personal experience periodically is neither unfair nor cruel, and may even be constructive in challenging him to achieve the transcendence. Public recitation of these blessings obviously calls for a certain level of education as to these rationales, if the blessings are not to give offense to the disabled.53

4. Identification with the disabled The diagnostic process, by labelling the disabled, may contribute to their isolation. One too easily comes to view an individual’s disability as defining his entire character, as setting him apart beyond what is required for treatment. Distancing and alienation from the disabled individual, seen as “other,” reinforce fear and may lead to exploitation. Singling-out the disabled can also generate an exaggerated sense of compassion, leading in turn to paternalism and over-protectiveness. The challenge of empathizing with the disabled, and including them in the community, while acknowledging their special needs and entitlements, is reflected in many biblical teachings on the deaf and the blind. Rabbinic interpretation sensitively recasts these teachings to tone down the sharp distinctions between disabled

50 This is the view of Kol Haremez, commenting on Mishna Megila 4:6 (cited in Yabia Omer 5, OH 10), which argues that Maimonides, on these grounds, would allow one who is blind to recite “who opens the eyes,” since he benefits from being guided by the sighted. Acknowledging that Maimonides requires the element of personal experience, he considers this vicarious benefit sufficiently personal, an argument that can be extended to other faculties. 51 This might meet Maimonides’ objection in Code, Laws concerning Prayer 1:7–9, explained by Kesef Mishne on Code, Laws concerning Prayer 7:7, that one should not recite a blessing of enjoyment if he did not experience the enjoyment. Here, it could be argued, the enjoyment is not a personal experience, but accrues to a collective to which one belongs. 52 Code, Laws concerning Mourning 10:8; Tur YD 399, based on BT Moed Katan 19a–20a. 53 This is also true of blessings over not having been made a Gentile, slave, or woman. See Wolowelsky, 1995, and E. Feldman’s rejoinder, particularly the remarks on the situation of the disabled on p. 73.

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and abled, without denying the vulnerabilities of the former. The Levitical code of holiness lists injunctions that must be observed by one who seeks holiness.54 Among the laws proscribing exploitation of one’s fellows are laws concerning the deaf and the blind. They prohibit exploitation of the blind and deaf, and show that the Bible does not have a romantic vision of man: Thou shalt not oppress thy neighbor, nor rob him; the wages of a hired servant shall not abide with thee until the morning. Thou shalt not curse the deaf, nor put a stumbling-block before the blind, but thou shalt fear thy God; I am the Lord (Lev. 19:13–14). Even those aspiring to become a “kingdom of priests, a holy people” exploit the vulnerable. The deaf, for example, are defenseless against insults they cannot hear. The Mekhilta and subsequent Bible commentaries explain the verse as referring to anyone who is cursed, and not just the deaf, who are mentioned because due to their disability they are likely victims.55 In fact, it is the inclusion of the deaf in this prohibition that requires justification. Rashi explains that the case of one who is deaf is mentioned “because [though he is unable to hear and feel the hurt caused by the curse] he is a living person, indicating exclusion of the dead, who, [though like the deaf in their inability to hear and be aware of the curse], are unlike them in no longer being alive.”56 The distinction between the dead and the deaf is used to underline the inappropriateness of insulting a living person, either due to its harmful effect, even if unheard, or, the harmful effects of the act of cursing on the perpetrator.57 Nachmanides also interprets the proscription against cursing as applying to everyone, though his account is different. Basing himself on the Talmud,58 he deduces the universal scope of the ban on cursing by taking the scriptural proscriptions (Exod. 22:27 and Lev. 19:14) as merely indicating its upper and lower bounds – dignitaries and the deaf.59 He adduces yet another argument for universal scope: If, in the case of one who cannot hear and will not become incensed by the curse, the Torah nonetheless admonished against cursing him, how

54 Lev. 19:2: “Ye shall be holy; for I the Lord your God am holy.” 55 Mekhilta Mishpatim, Nezikin, par. 5–6. Also see BT Sanhedrin 66a, and Rashi, Ramban, and Rashbam on Lev. 19:14. 56 Rashi on Lev. 19:14. 57 The prohibition against cursing one’s parents, unlike others, remains valid even after their deaths; see Lev. 20:9, BT Sanhedrin 85b, and Code, Laws concerning Rebels 5:1 for discussion of cursing one’s parents. 58 BT Sanhedrin 66a. 59 Only the “wicked” are excluded from the protection of this proscription. Nachmanides explains: “And the phrase ‘of thy people’ (Exod. 22:27) is interpreted to mean only those who conduct themselves in the manner of thy people, thus excluding the wicked.” Unlike Rashi, who sees “of thy people” as indicating inclusion, Ramban infers the exclusion of the wicked.

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much more so regarding one who hears and feels the insult, and will become incensed by it.60 Like Rashi, Nachmanides does not explain why Scripture prohibits insulting the deaf. In saying that one who is deaf does not feel the insult, he probably assumes that he has no way of knowing of the insult. As to why the disabled are susceptible to abuse in general, he explains: People are inclined to curse the deaf and put a stumbling block before the blind since they do not fear them, because “they know not, neither do they understand” (Ps. 82:5). Therefore, “thou shalt fear thy God” (Lev. 19:14) who sees the secret things. Maimonides explains the prohibition in terms of the destructive effect of cursing on the perpetrator’s character: Now we might suppose that the Torah, in forbidding us to curse an Israelite, [was moved by] the shame and the pain that the curse would cause [the cursed one] when he heard it, but that there is no sin in cursing the deaf, who cannot hear and therefore cannot feel hurt. For this reason we are instructed that cursing is forbidden by its prohibition in the case of the deaf, since the Torah has regard not only for the cursed one, but also the curser, who is told not to be vindictive and hot-tempered.61 The precepts not only curb undesirable behaviors toward others, but also attempt to shape personality.62 The singling out of the deaf here is probably due to the frustration arising in interactions with the deaf: oral communication is thwarted not only because the deaf cannot understand, if they cannot lip-read or sign, but also because getting their attention requires effort and patience. It is not hard to imagine an ordinarily civil individual cursing the deaf out of frustration. In encouraging a non-aggressive temperament, the halakhic culture recognizes that protection of the weak calls for sympathy and tolerance on the part of others, for openness to new and perhaps more difficult ways to communicate. Generally, able-bodied people have more power than the disabled. Some of the commentators noted the potential for exploitation, given this asymmetry of power.63 The perpetrator is tempted by the opportunity to exercise power over another human being. Of all of the victims listed in Leviticus 19, the blind person

60 Nachmanides ad loc. 61 Book of Precepts, Negative Commandments, #317. Marcus van Loopik suggests also considering the effect of this action on any third party who might overhear the cursing. 62 See Code, Laws concerning Ethics 1–3. 63 Ibn Ezra and Rashi on Lev. 19:14.

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is most vulnerable to being taken advantage of, and is therefore singled out. Those who rely on others, innocently trusting them, are especially tempting victims. Hence Rashi stresses that God, “cognizant of secret thoughts,” serves as ombudsman for the dependent.64 In biblical law as interpreted by the Sages, transactions by deaf-mutes and the mentally disabled, like those of the minor, do not have legal standing. Unscrupulous people could theoretically take advantage of this by expropriating their possessions. On the extra-legal grounds of “the interests of peace” (darkhei shalom),65 the Sages enacted protective legislation making such acquisitions tantamount to theft from the deaf-mute and the mentally disabled.66 Initially, the disabled and minors were granted legal standing in acquisition, to forestall the defense that seizing their property was not actually theft. The Sages consider it a kind of robbery, morally proscribed but not actionable in court,67 while R. Jose considers it “actual robbery,” and actionable. Yet even R. Jose did not argue that this disqualified such a thief from serving as a witness, as would be the case regarding scripturally-enjoined theft.68 Subsequently, such theft was regarded as disqualifying its perpetrator from serving as a witness, though still not as actionable in court.69 It was hoped this would serve to prevent the exploitation of the disabled arising from their scriptural relegation to non-legal status. In his first interpretation of the prohibition against tripping up the blind, Maimonides follows the Sages, extending this admonition to apply to the wholebodied as well: It also applies to helping or causing another to commit a transgression, because to do this is to aid and abet in his wrongdoing a man whom passion has deprived of his reasoning power and blinded or provided with opportunities for sin. It is in this sense that the Sages say of a transaction involving a loan at interest, that both the lender and the borrower transgress [the negative injunction] “or place a stumbling-block before the blind,” since each one helps the other by making the complete transgression possible.70

64 Rashi on Lev. 19:14. 65 BT Baba Metzia 12a. Soncino translates this as “for the public good.” 66 See Mishna Gitin 5:8, BT Gitin 59b–61a, Rashi on BT Gitin 59b s.v. mipnei darkhei shalom, and BT Baba Metzia 8a s.v. hashta. See also Shulhan Arukh HM 270:1. 67 BT Sanhedrin 25b. The Talmud also relates that while originally it was believed that such behavior occurred infrequently, and legislation was not required, in time it became apparent that it was indeed a problem, necessitating legislation to protect the disabled and minors. 68 In violating the biblical injunction of theft, he is considered, scripturally, a “base person” (rasha), and disqualified from serving as a witness, see BT Sanhedrin 27a and Baba Kama 72b, based on exegesis of Exod. 23:1. 69 Code, Laws concerning Robbery and Lost Property 17:12, following the majority opinion of the Sages against R. Jose, as explained in Hagahot Maimoniot ad loc., n. 60. 70 Maimonides, Book of Precepts, Negative Commandment 299, discussing Lev. 19:14.

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Yet Maimonides proceeds to say that the plain meaning of this injunction is that one may not give misleading advice to the “blindly” ignorant. Here, “blind” is taken in an expanded sense as anyone vulnerable to exploitation as a result of his ignorance. By not taking the term to refer to the literally blind, Maimonides underscores the idea that each of us is blind or disabled in some way. The visually-impaired person is not to be exploited, not because he is a special case, but as an application of a more general proscription. In this sense, the unsighted person is part of a community each member of which is vulnerable. This attitude animates the teaching of the Mekhilta,71 discussed above, that the proscription against insulting the deaf refers to the unfortunate (umlalim), an interpretation which similarly goes beyond the text’s literal meaning. “Deafness” is taken as a paradigm case of social powerlessness and vulnerability to victimization.72 Both ways of understanding the text have significant implications. The physically disabled are seen as typical of all those who could be victimized. It may be a dubious honor to be mainstreamed into the society of victims, but it is uplifting not to be perceived as alone on the periphery of society.73 This perspective ensures the dignity of the disabled, without denying the special attention that their disabilities mandate. In seeing ourselves as somehow deaf or blind, we are enjoined to be appropriately considerate of each other’s vulnerabilities, and, in identifying with the disabled, to look out for their interests. Empathetic identification is a means of feeling some of the pain the other encounters in coping with his disability.

71 Mishpatim, Nezikin, 5–6; also in BT Sanhedrin 66a. 72 BT Sanhedrin 66a; it is clear that the Talmud takes “deaf ” to mean “most unfortunate of your people,” to be understood as referring to any stricken individuals. 73 Deuteronomy Rabbah 2:22: “Misery shared by others is not misery.”

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The dignity of a disabled person in halakhic life is, as we have seen, largely determined by the extent of his inclusion in the obligation to observe the precepts. The precepts, we saw, regulate activities in a wide range of areas, including civil liability, serving as a witness, criminal exile for inadvertent manslaughter, capital punishment, and ritual laws. Various categorizations with respect to disability are adduced in Jewish law. In the Rabbinic literature, the seeing disabled, the hearing disabled and the mentally disabled are distinguished. Rabbinic perceptions of these disabilities determine the religious roles open to the disabled, which in turn impact on other aspects of their lives. That such categorization exists is healthy, for it indicates that disability is not seen as an intrinsically debilitating condition, nullifying any halakhic status. On the contrary – categorization is premised on the assumption that the disabled are not prima facie outside the framework of the law. As a function of their abilities, their position vis-a-vis the law calls for appraisal and deliberation. Along with minors, deaf-mutes and the mentally disabled are grouped together (heresh shote vekatan) in many of the Rabbinic sources. Significantly diminished mental functioning is the Rabbinic rationale for this categorization. Exceptions are made within these categories to accommodate those exhibiting only some of the classic symptoms of mental dysfunction. Nevertheless, this analysis appears insensitive to the moral imperatives that have been examined in previous chapters. Is this indeed the case, and if so, can the law’s integration of new insights into the nature of disability temper the dissonance? In this chapter, we will examine the following four categories of disability: blindness, mental dysfunction, deafness/muteness prior to the nineteenth century, and contemporary deafness/muteness.

1. Blindness The Talmud records a disagreement between the Tannaites R. Judah and R. Meir on the degree to which one who is blind is obligated to observe the precepts.1

1 BT Baba Kama 86b–87a.

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The controversy has generated much debate over the centuries, and has not been resolved even today.2 R. Meir maintains that the blind are categorically obligated to observe all the precepts, save those that are specifically vision-related, from which they are exempt. R. Judah, on the other hand, exempts the blind from all observance. Let us examine this disagreement more closely. 1.1. Liability for degradation (boshet) The sighted individual is liable for damages if he causes the indignity of degradation. Should this also be true of one who is blind? Not stated explicitly, the law is inferred from the Mishnaic teaching on liability incurred for an insult: One who insults a naked person, a blind person, or one who is asleep, is liable [for degradation], though one who insults others while asleep is exempt.3 An unconscious person is not liable for the tort of degradation. Because the Mishna does not state explicitly that this also applies to one who is blind, the Gemara infers that he is liable.4 Unlike a sleeping person, one who is blind is deemed conscious of his acts. This implies that the Mishna cannot be in accordance with R. Judah, who also taught, “A blind person is not subject to the law of degradation.”5 Apparently, R. Judah likens one who is blind to someone asleep. The Talmud continues, So also did R. Judah exempt [one who is blind] from liability to be exiled,6 lashed,7 or put to death by a court of law. The Talmud specifies separate justifications for each of these exemptions. The exemption from punishment for degradation of another is deduced from the presumed disqualification of one who is blind from serving as a witness. 1.2. Disqualification from witnessing The first argument disqualifies from witnessing those who have sensory disabilities – vision, hearing and speech impairments, or are mentally incapacitated: “And if any one sin, in that he heareth the voice of adjuration, he being a witness, whether he hath seen or known, if he do not utter it, then he

2 3 4 5 6 7

See the works of I.J. Cohen (Hebrew). Mishna Baba Kama 8:1. BT Baba Kama 86b; Rashi ad loc. s.v. delo kerabi Yehuda. BT Baba Kama 86b. To the cities of sanctuary for those who commit inadvertent manslaughter. For transgressing a negative commandment.

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shall bear his iniquity” (Lev. 5:1). “He being a witness” [means] qualified for witnessing. “He heareth” excludes deaf-mutes. “Hath seen” excludes the blind.8 “Or known” excludes the mentally disabled. “If he does not utter it, then he shall bear his iniquity” excludes the mute. These are the words of the early Sages.9 R. Akiba offers another argument for the disqualification of those deemed mentally incompetent, one which intimates that the blind are not disqualified: “Then shalt thou inquire, and make search, and ask diligently” (Deut. 13:15) – does one then investigate by asking the deaf-mute, and does one interrogate the mentally-incapacitated?10 Since inquiry implies rational dialogue, R. Akiba infers that this disqualifies those deemed mentally incompetent, including deaf-mutes, but not the blind. R. Meir agrees with the first argument. The disqualification of the blind from witnessing is due to their specific disability, which is critical for the precept in question. He concedes the disqualification of the blind with respect to other precepts only where vision bears directly on their implementation. 1.3. Exemption from liability for degradation R. Judah states: He derives the law of “degradation” by comparing “thine eyes” (Deut. 25: 12) to “thine eyes” occurring in the case of the false witnesses (Deut. 19:21). Just as there blind persons are not included, so too here [regarding degradation], blind persons should not be included.11 By verbal analogy (gezera shava), the exemption from liability for degradation is derived from the exemption from liability for false witness. Here, the biblical phrase on which the analogy is based, “show no pity,” literally means “thine eyes shall not pity” (lo tahus einekha). Referring to both degradation and false witness, it instructs the court to administer the law scrupulously. One who is blind is exempt from liability for bearing false witness because he is exempt from witnessing altogether. The exemption from liability for degradation via the linguistic connection to witnessing is thus hermeneutically plausible.

08 For another argument from which the disqualification of the blind is deduced, see Rashi on BT Nida 49b s.v. leatuyei suma, adducing Lev. 5:1, which links witnessing to seeing, thus excluding an unsighted person. 09 Tosefta Sheviit 3:8. 10 Ibid. 11 BT Baba Kama 86b.

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In the biblical case of degradation, a woman is punished for taking hold of her husband’s adversary by his private parts (Deut. 25:11). Her assault is deemed so demeaning that it justifies a penalty, literally “the cutting off of her hand,” commuted into monetary compensation. Now it is understandable why a blind woman would be exempt from a penalty established to deter one in the heat of struggle from availing himself of such ugly tactics as grabbing his opponent’s genitals. This penalty will not prevent the blind from this offense, as they are groping “blindly”; their offense is clearly unintended. Generally, then, one sympathizes with R. Judah’s exemption: liability should accrue only where the perpetrator perceives the import of such offense. 1.4. Exile for inadvertent manslaughter Similarly, R. Judah exempts the blind from the penalty of exile for manslaughter. The purpose of exile to a city of sanctuary is to protect the manslaughterer from the blood avenger, who, according to biblical law, may with impunity slay the manslaughterer anywhere outside a city of refuge.12 To exempt the blind from exile means that blood avengers cannot slay them even if they do not take refuge in a city of sanctuary. R. Judah derives the exemption from the term “seeing him not” in Numbers 35:23, taking it literally, as referring to one who has the capacity to see but happens not to have seen, while exempting one who lacks this capacity. R. Meir, by contrast, argues that “the blind are included.”13 The Talmud explains R. Judah’s exemption as follows: “As when a man goeth into the forest with his neighbor to hew wood [and accidentally kills him with the ax] . . . he shall flee unto one of these cities and live” (Deut. 19:5); this might include even a blind person. The biblical text therefore says “seeing him not” to exclude [such a one].14 R. Meir, however, argues that there are not one but two qualifying terms in the texts, one in Numbers, the other in Deuteronomy, mandating inclusion on the basis of the hermeneutical principle of “a limitation followed by another limitation”: The biblical text inserted “seeing him not” (Num. 35:23), which implies an exception, and further inserted “unawares” (bibli daat) (Deut. 19:4), similarly implying an exception. We thus have “a limitation followed by another limitation” (miut ahar miut). And the established rule is that “a

12 The institution of the cities of sanctuary recognizes the difference between cold-blooded murderers, who are subject to execution by the court if found guilty, and inadvertent manslaughterers (Num. 35:19–25). 13 BT Baba Kama 86b; also in BT Makot 9b. 14 BT Baba Kama 86b.

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limitation followed by another limitation” is intended to amplify [i.e., to allow for inclusion]. R. Judah, using the same rules of interpretation, contends that the additional qualifier “unawares” is a supernumerary qualification that can be used to anchor R. Meir’s inference, but “was inserted to except a case of intention.”15 Having distinguished inadvertence from negligence, R. Judah can argue that because of his visual disability, manslaughter by a blind person is always inadvertent, even where it would otherwise be ruled negligence. It is this implicit argument behind the formal discussion that R. Meir must address. In arguing for inclusion, he is arguing against R. Judah’s view that the blind are not held to be capable of bona fide negligence, which entails the capacity to avoid negligence. 1.5. Exemption from capital and corporal punishment R. Judah derives the exemption from capital punishment by comparing murder to inadvertent manslaughter. [Exemption from] liability to be put to death by a court of law is derived from comparing the term “murderer” [used in reference to capital punishment in Num. 35:31] with the term “manslayer” [used regarding liability for exile in Deut. 19:3].16 From R. Judah’s perspective, this inference on the basis of verbal analogy is reasonable. If one who is blind is not held liable for exile, a lesser penalty, in the case of inadvertent manslaughter, why should he be liable for capital punishment? He then concludes that the blind are exempt from corporal punishment, as they are from capital punishment, on the basis of yet another verbal analogy: [Exemption from] liability to be lashed is derived [by comparing] the term “wicked” (Deut. 25:2) with the term “wicked” (Num. 35:31) said of those likely to be put to death by a court of law. The analogy is not simply verbal: “wicked” refers to the character or motivation of the perpetrator, providing moral justification for punishment. R. Judah is leery of attributing base motivations to one who is blind. R. Meir disagrees – he considers the blind to possess full legal and moral culpability, including liability for murder, the same intuition he had regarding their liability for exile.

15 Where a manslaughterer lacked prior intention he is exempt from exile. R. Judah distinguishes between negligence, which mandates exile, and lack of intention (eino mitkaven), which does not. 16 BT Baba Kama 86b.

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These exemptions are all linked by analogy to the case of exile, and the formal argument appears to reflect a deeper disagreement as to the moral and legal capacities of the blind. However, exemptions granted the blind by R. Judah in other areas of the law do not derive from connection to the case of exile. 1.6. Exemption from civil liability Another baraita shows that R. Judah is consistent, exempting the blind not only from liability for degradation, but also “from all the ordinances (mishpatim) of the Torah [i.e., civil laws].”17 However, generalizing from degradation to all civil liabilities strikes the Talmud as disproportionate; degradation could be a special case.18 Extension of the exemption from liability for degradation to all civil liability is therefore based on criminal law, by way of the scriptural juxtaposition of terms referring to manslaughter and the term “ordinances”: “Then, the congregation shall judge between the smiter and the avenger of blood according to these ordinances” (Num. 35:24). Whoever is subject to the law of the “smiter” and the “avenger of blood” is subject to “ordinances,” but he who is not subject to the law of the “smiter” and “avenger of blood” is not subject to “ordinances.” R. Judah does not differentiate between civil and criminal liability. Someone deemed incapable of making indemnity in one area is disqualified from all payments of indemnity. Legal personhood is perceived as a totality; disability in part affects the individual’s entire legal character regarding restitutive claims owed to God and society, in capital and corporal cases, and to individuals, with respect to monetary claims. R. Meir, who does not exempt one who is blind from corporal punishment or exile, holds him equally liable in civil matters.19 1.7. Religious laws Thus far, we have examined exemption from criminal and monetary law. One might argue, regarding “religious law,” that here even R. Judah should obligate the blind, on the grounds that standing before God is different. But the Talmud states: “So also did R. Judah exempt him from all commandments stated in the Torah.”20 What justifies this extension of the exemption from criminal and civil law to religious law? R. Shisha argues: Because Scripture says: “Now this is the commandment, the statutes, and the ordinances, which the Lord your God commanded to teach 17 BT Baba Kama 86b. 18 As conjectured by Tosafot on BT Baba Kama 87a s.v. vekhen haya Rabi Yehuda. 19 One could argue this a fortiori: liability for criminal acts implies liability for civil acts. Full treatment of civil liability and the disabled is beyond the scope of this book. 20 BT Baba Kama 87a.

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you” (Deut. 6:1), he who is subject to the “ordinances” is subject to “commandments” and “statutes,” but he who is not subject to “ordinances” is not subject to “commandments” and “statutes.” Biblically, liability for religious precepts is contingent upon civil liability: only one capable of bearing responsibility for societal law is considered to be addressed by God in terms of religious law.21 Covenantal obligation is bestowed in its entirety, though as we saw in an earlier chapter, this does not preclude voluntary observance of the precepts. Yet in another case, that of women, partial exemption, which does not entail absolute exemption, is indeed established. Why then, in the case of the blind, does partial exemption entail total exemption?

1.8. Divine decree This question has been addressed by R. Faitel Levin, whose answer reflects a classic religious attitude: “He [R. Judah] maintains, rather, that the Torah excludes the blind from these areas for some other unexplained reason, by way of ‘divine decree’ – gezerat hakatuv.”22 Unable to comprehend its rationale, but convinced that R. Judah’s sweeping generalization regarding the blind cannot hinge on competence, he appeals to the argument of arbitrary divine will. By contrast, on the Maimonidean view, according to which God is not more irrational than intelligent people,23 R. Judah’s position should, in principle, be justifiable through rational discourse and insight into the nature of reality. Adopting the Maimonidean attitude, we must assume that exemption from observance of the precepts is related to a judgment about the incapacitation inherent in blindness. While for R. Meir, the law relates to a blind person as to an individual with a disability; for R. Judah, it conceives him as “halakhically” disabled, that is, as disabled overall. R. Judah’s view does not divest the blind of all halakhic status. It mandates, for example, their indemnification for the tort of degradation. R. Judah differentiates between compensating the blind for damages inflicted on them and exempting them from compensating others for damages they cause, protecting the blind without obligating them. Undoubtedly, R. Judah is moved by compassion for the difficulties with which the blind must cope. This is also the motive for similar exemptions granted deaf-mutes and the mentally disabled. R. Meir balances compassion with expectations, seeing the blindness as affecting only activities

21 This is not a literal, but a midrashic reading, since the term “the commandment” in Deut. 6:1 (hamitzva) also includes the subordinate “statutes” and “ordinances.” 22 Levin, 1987, p. 131. See Rashi on Num. 19:2, based on BT Yoma 67b; Numbers Rabbah 19:5. 23 Guide of the Perplexed 3:25.

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where vision is essential, such as giving testimony24 and serving as a judge.25 In this connection, Astor notes the discussion between two blind scholars, R. Sheshet and R. Joseph, on the disqualification of the blind from serving as agents in the delivery of a bill of divorce. Countering R. Sheshet’s suggestion that the reason for the disqualification – “he does not know from whom he takes and to whom he delivers” – R. Joseph demurs, “How is it permitted for a blind man to associate with his wife, or for men to associate with their wives at night? Is it not by recognizing the voice?”26 Because, clearly, one who is blind could similarly identify the sender and receiver of a bill of divorce, R. Joseph explains the disqualification as due to the fact that by law, the agent must be able to declare: “in my presence it was written and in my presence it was signed.” Since there is no audible element to the signing, one who cannot see cannot make this declaration. The attitude of this blind Sage, R. Joseph, to halakhic positions regarding the blind, is most instructive: I used to say: “If someone were to tell me that the law is in accordance with R. Judah, who declared that a blind person is exempt from the commandments, I would make a celebration for our Sages,” because though I am not enjoined, I still perform commandments. Now, however, that I have heard the statement of R. Hanina, who said that greater is the one who is commanded and acts because he is so enjoined than the one who does so without being enjoined – now, should someone tell me that the law is not in accordance with R. Judah, I would make a celebration for our Sages, because if I am enjoined to perform the commandments my reward will be greater.27 As a blind Jew, should he rejoice or despair over R. Judah’s view? Initially, he understood disability as an opportunity to transcend the religious level of the sighted. As R. Hanina’s view on the primacy of obligation gained acceptance, however, R. Joseph wished he could neutralize R. Judah’s view in order to be obligated to observe the law.

24 25 26 27

Code, Laws concerning Evidence 9:12 BT Nida 50a. Mishna Gitin 2:1, BT Gitin 23a; Astor, pp. 96–7. BT Baba Kama 87a; also BT Kidushin 31a. R. Joseph stresses that the “reward” is greater for one who is commanded, though R. Hanina does not say this explicitly, and can be understood to mean that the act is greater for one who is commanded. Rashi, and some others, emphasize the reward element here, but I believe that in light of the wider context of the discussion, R. Joseph’s point need not be taken as pertaining to the reward for the deed, and is better understood as referring to the deed itself.

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1.9. Later rulings on the blind and precept-observance Later authorities based their rulings on these Tannaitic views. Maimonides, for example, rules according to R. Meir: “one who is blind, or lame, or maimed in his hand, or who has a problem with his head or eye or hand or leg and similar things, is considered to be a healthy person in all matters concerning business transactions or gifts.”28 The Radbaz, following R. Meir, emphatically asserts that the blind are scripturally obligated.29 He makes exceptions only with regard to the precepts of serving as a witness, reciting the Passover Haggada, serving as a judge on the Sanhedrin, reading the Torah, pilgrimage and tendering the holiday offering (hagiga). In all these cases, the blind are exempted for specific reasons peculiar to the precept in question and explicitly noted in the talmudic sources.30 Rabbenu Tam ruled that even on R. Judah’s view, when one who is blind (or any exempt person, disabled or otherwise) opts voluntarily to observe a precept from which he has been exempted, he may nonetheless recite the benediction that precedes the act, despite the fact that the text speaks of “being commanded,”31 basing his ruling on R. Joseph’s joy when he thought it greater to observe a precept voluntarily. Were he not allowed to recite a blessing, argues Rabbenu Tam, why would he be so happy?32 Even those who follow R. Judah find other grounds upon which to base obligating the blind to observe the precepts. The Tosafot maintain, for example, that though biblically exempt, the blind are Rabbinically obligated to fulfil all the precepts: “otherwise one who is blind will be like a Gentile since his conduct will not be according to Israel’s Torah.”33 This contrasts with women who, though exempt from a number of time-dependent positive precepts, nevertheless certainly cannot be perceived as not conducting themselves like Jews. One argument put forward to explain why the Sages mandated observance for the blind but not for women is that males are the “obligated gender”; hence, the

28 Code, Laws concerning Original Acquisition and Gifts 8:1; Shulhan Arukh HM 250:5 follows this ruling. 29 Relying on rulings of the Rif, Rambam, Rosh, Meiri and Ran. 30 Radbaz, Responsa, 4:59. 31 Tosafot on BT Kidushin 31a, s.v. delo mifkidna vaavidna. 32 The assumption is that to recite blessings is a blessed thing. This is indeed the case, according to Tosafot on BT Rosh Hashana 33a, s.v. ha Rabi Yehuda, and the dictum in BT Baba Kama 30a that “one who wants to be pious, let him busy himself with matters having to do with benedictions.” However, one could argue that Rabbenu Tam’s proof only holds if the individual is under the impression that to voluntarily observe a precept is greater, and a fortiori recites a benediction. But given awareness that obligatory fulfilment is greater, it is no longer so certain that a blessing is in place. 33 Tosafot on BT Baba Kama 87a s.v. vekhen (second occurrence); there are a few exceptions such as, for one who was born blind, publicly leading recitation of the benediction “who createst lights,” which precedes the Shema, since even Rabbinically this requires that one have some enjoyment of the light.

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blind are obligated by virtue of their gender.34 We can speculate that the Sages are uncomfortable leaving the blind male halakhically unrealized, and hence legislate his obligation, viewing maleness as an essence, linked to observance, that overrides blindness. On this line of reasoning, only blind males should have been so obligated by Rabbinic ordinance. Yet from the perspective of the other argument put forward by the Tosafot, one might argue that legislating for the blind, to extricate them from a lower covenantal status than Gentiles, should be extended to blind women, as well as blind men, who otherwise are also so deprived. On this reasoning, would the law parallel that governing sighted persons – for example, exempting blind women from time-dependent precepts? The Ritba, following R. Judah, identifies three positions in the Tosafot regarding the blind: 1 2 3

the blind are categorically exempt from precept-observance, scripturally and Rabbinically, even in cases of acquired (i.e., non-congenital) blindness; the blind are scripturally exempt from precept-observance, but Rabbinically obligated, because otherwise they would be like the Gentiles; only those with acquired blindness (even when they were minors) are Rabbinically obligated, and only with respect to precepts not dependent on vision. (This view distinguishes those upon whom the potential for obligation devolved before the onset of disability, from others who were never so obligated).35

R. Benjamin Zeev maintains that the law follows R. Judah, yet rules that the blind are Rabbinically obligated. He innovatively rules that the exemption applies only to those born blind, whereas those who became blind, having once been biblically obligated, never lose the obligation to observe the precepts.36 On this view, R. Judah’s position should be refined so that only congenital blindness is considered halakhically debilitating. Pursuing this, R. Benjamin Zeev boldly conjectures that one whose blindness is acquired, though presently exempted from biblical obligation (since he is blind), and only obligated Rabbinically, may nonetheless carry out precepts on behalf of others who are biblically obligated. He argues that the possibility such an individual will regain his sight and thereby “regain” his biblical obligation – not an absurd possibility, given that he was once sighted – is sufficient to warrant this. It is not clear whether he means that the individual must

34 Tosafot on BT Eruvin 96a s.v. dilma (near the end of the long comment); and on BT Rosh Hashana 33a s.v. ha Rabi Yehuda. 35 Ritba, responsum #97. His remarks on the blind are in response to a question about the validity of a blind person’s leadership role in the synagogue. Cf. Responsa Noda Biyehuda, 2nd ed., OH 112. 36 Responsa Binyamin Zeev #245. His responsum concerns the question of whether a blind scholar can be called up to read the Torah with a blessing; I discuss his enthusiastic decision to permit this in Chapter 8. This reasoning should also apply to other disabilities acquired after one has been able-bodied and obligated.

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have initially attained adulthood and adult obligation, or whether it suffices that he was sighted, and hence potentially biblically obligated, only as a minor. R. Akiba Eger adds a new twist to R. Judah’s view, arguing that the exemption from observance pertains only to the positive precepts. He supports this contention by citing the assertion of the Tosafot that, even according to R. Judah, one who is blind may, though only Rabbinically enjoined, recite a blessing upon performing a precept.37 This prerogative devolves from the (negative) scriptural injunction against deviating from the guidance of the religious authorities.38 Now if the blind were not bound to observe negative commandments, they would not have to act in accordance with Rabbinic legislation. On this basis, R. Akiba Eger extends the ruling to other obligations pertaining to observance of negative precepts, and even to positive precepts linked to negative ones,39 such as the sanctification of the Sabbath.40 R. Ovadia Yosef, though in agreement with those who oppose R. Judah, that is, though a supporter of the view that the blind are obligated to observe the precepts, maintains, with R. Akiba Eger, that even those who follow R. Judah hold the blind scripturally liable for observance of all negative commandments and biblically exempt only from observance of the positive ones (which, in his view, they are Rabbinically obligated to observe).41 R. Hildesheimer, by contrast, claims that, according to R. Judah, the blind are exempt even from observing negative precepts.42 It is not clear if those who follow R. Judah categorically would extend the exemption from the precepts to the Noahide laws, which would render the status of the blind with respect to observance even lower than that of Gentiles.43 1.10. Summary We see that the range of opinion on the halakhic inclusion of the blind in observance of the precepts varies from complete exemption, in R. Judah’s view, to

37 Tosafot on Eruvin 96b s.v. dilma and Rosh Hashana 33a s.v. ha Rabi Yehuda, ha Rabi Yosi. 38 Deut. 17:11, BT Shabat 23b. 39 R. Akiba Eger, responsum #169, responding to a request for clarification of an opinion in Tosafot related to R. Judah’s view on the status of the obligation of the blind to observe Passover and phylacteries. Responsa Shoel Umeshiv (1, 2:126) cited by R. Isaac of Trani, Sefer Hamakhria, supports this position. 40 That is, the Sabbath kiddush. Sanctification, while a positive precept, is the counterpart of the negative precept not to desecrate the Sabbath. 41 Responsa Yehave Daat, 2:65. The responsum is primarily about women’s obligations regarding recitation of the Haggada and whether they can discharge this obligation for others. He raises the issue of the blind in comparing their status vis-a-vis precepts such as “remembering the exodus from Egypt” with that of women. 42 Azriel, #1 (Misc.), 15, in discussing the status of the precept of “fringes,” specifically, the question of whether the exemption of women renders it a precept that “is not equal to all” (eino shave bakol). For details, see I.J. Cohen, “The Blind in the Halakha,” 1964, p. 4, notes 9–14. 43 This possibility, accepted by a few authorities, is rejected by Cohen, op. cit., p. 5.

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almost total obligation (except for precepts where sightlessness is a direct obstacle to performance of the commanded act), in R. Meir’s view. Opinion on the extent of exemption also varies widely: on one view, the blind are exempt from observance of the Noahide laws, on another, they are exempt only from precepts binding Jews beyond the Noahide laws, on a third view, they are exempt from observing positive precepts, but liable for negative ones (and, on one view, for positive precepts linked to negative ones); and finally, on yet another view, they are Rabbinically obligated to observe all the precepts save those where blindness interferes with the actual performance of the commanded act.

2. Mental dysfunction The case of mental disability, to an even greater extent than that of blindness, is characterized by a lack of agreement about the essence and effect of the disability, reflecting, perhaps, a lack of appropriate concepts for thinking about the questions it raises. There is, indeed, no consensus even on the reality of mental aberration. Mental incompetence seems to be antithetical to the ideals of halakhic culture, whose paragons are the scholar (talmid hakham), the righteous one (tzadik), and the pious one (hasid). Each archetype exemplifies an admired mode of bearing responsibility for the covenantal values. For each, the role of judgment is critical. While mental incompetence may be pitied in such a culture, it can never be admired as it is in cultures where mental aberration is seen as indicative of spiritual elevation. The talmudic dictum that, with the destruction of the Temple, prophecy was taken from the prophets and transferred to fools (shotim) and children, was intended to be derogatory.44 As all of Israel is called to be “a holy people, a kingdom of priests,” responsibility for observance of the law is at the heart of the covenantal culture of Judaism. How does the law relate to those not blessed with the kind of mental competence that allows for such a commitment? Yet finer distinctions are appropriate. The category of shote,45 mentally disabled, is much used in the Rabbinical literature, but its application to real cases is difficult. Even for those so categorized, a distinction is drawn between exemption from precept-observance but inclusion in the covenant, and exclusion from the covenant. While deaf-mutes and the mentally disabled are both judged incompetent, as if they are similarly mentally incapacitated, the Talmud does not treat them identically.

44 “R. Johanan states: Since the Temple was destroyed, prophecy was . . . given to fools and children” (BT Baba Batra 12b), illustrating this with a prediction made by a mentally disabled person. See Hes and Wollstein, 1964, pp. 107–15. 45 The translation commonly used for “shote” is imbecile or idiot. I try to use “mentally disabled” or “mentally incompetent,” sometimes leaving the original “shote.” While the Sages teach that brevity is a virtue, they also teach that it should be forgone for the sake of someone’s dignity (BT Pesahim 3b).

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2.1. General exemption from precept-observance A blanket judgment rendered by the Mishna46 exempts deaf-mutes and the mentally disabled from all precept-observance and disqualifies them from discharging precepts on behalf of others. Since they are not themselves obligated, they lack the standing to act religiously for others. Personal exemption is due to lack of understanding, illustrated in the explanation for the disqualification of the mentally disabled from the obligation to go on pilgrimages to Jerusalem and from the command to “be seen” (reiya). “Said R. Eleazar: ‘It has been clearly shown to you (ata hareita ladaat) [that the Lord, He is God; there is none else beside Him] (Deut. 4:35).’”47 Citing a biblical verse, R. Eleazar implies that the shote lacks the capacity to understand.48 The fact that deaf-mutes and the mentally disabled are grouped here with minors, who are similarly disqualified, makes it clear that the decisive factor is mental capacity,49 a prerequisite for obligation to observe the law. While the boundary between maturity and immaturity may be inexact, the concept behind such a boundary is not unreasonable: some maturity must have been attained if one is to be held responsible for his actions. The exemption from observance is anchored in consideration for the limited capacities of these disabled; it is not a punishment – the withholding of a sacred privilege – imposed for their incompetence. Nor is it related to concern for the sanctity of the ritual objects used in observance of the precepts: handling by the mentally disabled does not constitute desecration, though the respectful handling of sacred articles is mandated to guard against damage. Rather, it is compassion that underlies the tradition, to avoid burdening the mentally disabled. Moral agents are responsible for their actions. Meaningful moral agency, however, requires that two conditions obtain. The agent must have the capacity for rational deliberation and understanding of his actions and their consequences; and the agent cannot be compelled by forces outside his volitional control. The mentally disabled often appear to be driven by such constraints, to be acting as if “in the grip of an irresistible force,”50 rather than on the basis of deliberation and awareness of the significance of their actions. Hence, it is difficult to attribute responsibility to the mentally disabled. This is reflected in the halakha: the mentally disabled are exempted from responsibility for precept-observance,51 and as a

46 Mishna Rosh Hashana 3:8. 47 JT Hagiga 1:1. Note that in Hebrew, “see” and “show” are cognates. 48 Korban Haeida ad loc. s.v. ata comments: “Being shown is possible only for one who has his faculties (bar daat).” 49 Because they share this lack of mental competence, these three categories are often grouped together in the halakhic literature, in the religious sphere (see Shulhan Arukh OH 539:2) and the civil-legal sphere (see Shulhan Arukh HM 35:1, 8, 11). 50 Wear, 1980, p. 22. 51 This exemption, with respect to the Noahide laws, also applies to Gentiles with diminished capacities, according to Maimonides, Code, Laws concerning Kings and Wars 10:2.

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consequence, also disqualified from performing precepts on behalf of others. Regarding precepts such as ritual slaughter (shehita), where what is important is the material outcome – in this case, that the animal is properly slaughtered – and not what the [supervised] slaughterer was thinking, performance of such acts is valid a posteriori.52 But exemption from religious observance and its attendant disqualification from discharging religious obligations for others does not imply freedom from all legal responsibility. Liability for child support, for example, remains.53 Obligation may be imposed against property, regardless of the owner’s mental capacity, based on what he would have wanted had he been mentally competent, on the assumption that despite their global exemption, the mentally disabled are nonetheless of covenantal status (bnei mitzva).54 They are not mentally competent nor may they be punished for violations of the precepts, but they are of the community and bound by its commitments. It is assumed that where others are dependent upon him, a mentally disabled person would, were he sane, comply with the reasonable demands of the law. 2.2. Diagnosing the mentally disabled Jewish law is generally sensitive to the difficulties inherent in any schematic classification of complex subject matter, all the more so when we are dealing with categorization of psychological conditions for the purpose of determining halakhic obligation. In defining the shote – one who is mentally impaired – the Sages distinguish psychological weakness from intellectual weakness, and further, they distinguish different levels of functioning, seeking characteristic symptoms, primarily behavioral, to identify mental disturbance. But there is no consensus on whether a complex of behaviors is needed to characterize the mentally disabled, or a single behavior suffices. Three symptoms are suggested: “He who goes out alone at night, spends the night in a cemetery, and tears his garments.” According to R. Huna, these “must all be together,” while according to R. Johanan, “even one of them” suffices to diagnose mental disturbance.55 To R. Johanan, a single bizarre behavior suffices to indicate an underlying psychological disorder, while to R. Huna, even singularly unconventional acts are not indicative of mental disorder unless they occur in predictable clusters. Moreover, how the actions are carried out is also pertinent: “If he does them in an insane manner (derekh shtut), even one, it also suffices. If he does not do them in an insane manner, even all of them prove nothing.” There is no purely mechanical means of diagnosing mental disability; actions must be analyzed in a

52 53 54 55

See Chapter 10. See Sheinfeld, 1987. Pri Megadim, introduction to part 2, cited in Sdei Hemed 8:115. BT Hagiga 3b–4a. See R. Melamed-Cohen, 1989, pp. 34–40 for an analysis of the talmudic sources.

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broader behavioral context in order to establish that they actually constitute a case where “he does them in an insane manner.” The talmudic idea that unusual behavior be considered a sign of mental malfunction only if carried out in an abnormal way is striking – there is a distinct reluctance to categorize a person as mentally disordered on the basis of single behaviors. “The Gemara is not prepared to accept bizarre conduct itself as arbitrarily establishing mental incompetence.”56 Bizarre actions manifested by one considered undisturbed invite interpretation that renders them consistent with sanity. It is the overall context, rather than the behavior, however aberrant, that is key. The Talmud’s sophistication here is evident in the alternative explanations it brings for specific aberrant behaviors that might otherwise have been considered indicative of mental incompetence: If he spent the night in a cemetery . . . he did it so that the spirit of impurity might rest upon him.57 If he went out alone at night . . . he was seized by lycanthropy. If he tore his garment . . . he was lost in thought. But as soon as he does them all, he becomes like [an ox] that has gored an ox, an ass and a camel, and is thereby a recidivate gorer (muad ) 58 with respect to all animals.59 Taken on its own, each of the aberrant behaviors can be explained as an action of one who is sane. Taken together, the plausibility of interpreting them as the actions of a sane person can no longer be maintained; the pattern is taken as an indication of underlying mental incompetence. There is one symptom, suggested by R. Papa, which even according to R. Huna alone suffices to render a judgment of mental disorder: “Who is mentally disabled? One who destroys all that is given to him.”60 Sheer destructiveness, an alternative to the cluster of symptoms proposed by R. Huna, is considered an adequate indication of mental dysfunction. Even so, the Talmud is sceptical of simple diagnostic tests. While this behavior is unquestionably aberrant, more so than the others mentioned, the Talmud still questions whether R. Huna “would have retracted only with regard to the [case of the] man who tore his garment, because it resembles this [case]; or would he have retracted with regard to all of them? It remains undecided.”61 A rational explanation for apparently deviant behavior, however far-fetched, is preferred in order to avoid labelling a person as mentally disabled.62

56 Bleich, 1983, p. 284, discussing this passage. 57 That is, he did it fully comprehending his motive, namely, to conjure up evil spirits for magical purposes (Rashi), or to receive communications from them. 58 An animal whose owner has been forewarned and hence is liable for damage it causes. 59 BT Hagiga 3b–4a. 60 Ibid. 61 Ibid. 62 See Aviner, 1990, pp. 1247–8.

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2.3. Diagnostic discretion Maimonides summarizes the talmudic understanding of mental incompetence in discussing the qualifications for serving as a witness: One who is mentally disabled is incompetent to serve as a witness by biblical law, because he is not subject to commandments. “Mentally disabled” refers not only to one who walks around naked, breaks things, and throws stones, but to anyone whose mind is confused (nitrefa daato), who is always agitated (daato meshubeshet tamid ) regarding some matters, although with regard to other matters he speaks lucidly and asks pertinent questions; nevertheless his evidence is inadmissible and he is included among the mentally disabled. In the case of an epileptic (nikhfe) – during a fit he is ineligible; in the interval he is eligible, whether his paroxysms occur periodically or at irregular intervals, provided that he is not mentally disordered all the time, for there are epileptics whose minds are always confused. The question of the admissibility of the evidence of epileptics requires careful consideration. The inordinately foolish ( petayim beyoter), who are unable to discriminate between contradictory matters and do not comprehend things as normal people do, [and] also those who are impulsive (hamevuhalim), hasty in judgment (nehpazim bedaatam), and act like the insane (meshugaim), are classed with the mentally deficient. Judicial discretion is vested in the judge in this matter, as it is impossible to lay down detailed written rules on the subject.63 Maimonides distinguishes eight categories of mentally-aberrant persons: the mentally disabled, the mentally confused, the constantly agitated, epileptics, the inordinately foolish, the impulsive, the hasty in judgment, and the insane.64 He also differentiates between permanent and periodic mental disability; the former disqualifies the individual in question from serving as a witness, the latter does so only during episodes of disorder, although careful evaluation is necessary. According to Maimonides, the symptoms described in the Talmud are only intended to serve as illustrations;65 he introduces an element of diagnostic discretion that is not explicit in the Talmud. This implies that mental incompetence can be inferred from a broader range of aberrant behaviors than that specified by the Talmud, a point not accepted by all authorities. Ultimately, Maimonides gives

63 Code, Laws concerning Evidence 9:9–10. 64 See Hes and Wollstein, pp. 104–6, for the talmudic analysis; and see Goldberg, 1986, p. 232 for the distinction between the mentally disabled and the retarded. 65 This position is supported by R. Aryeh Leib of Metz in Shaagat Arye, addenda, #2 (cited in Bleich, 1983, p. 286), regarding the validity of a bill of divorce granted by a husband whose behavior was erratic, though not in the ways specified by the Talmud.

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broad discretionary power to the judge,66 since differences between individual cases of incompetence cannot be adequately summarized in legalistic formulas, but must be assessed individually. Maimonides’ understanding of the Talmud is codified by R. Joseph Caro,67 who also cites the views of those, notably R. Joseph Colon, who dispute it, regarding only the specific behaviors described by the Talmud as definitive in diagnosing mental disability.68 The consequences of these different approaches are serious indeed. The Maimonidean approach favoring discretion allows for a broad range of behaviors to be adduced as evidence of mental incapacity. Colon’s strict criteria, on the other hand, taken literally from the Talmud, seem an overly narrow instrument for evaluating a phenomenon as intricate and diverse as human behavior. Nevertheless, Colon’s approach has the merit of severely limiting the range of behaviors for which individuals, however severe their mental impairments, can be deprived of their halakhic standing due to mental aberration. Colon’s motivation for ruling as he does is not obvious. Was he uncomfortable with the possibility of divesting someone of halakhic standing, and did he therefore seek a technically correct way to limit this option, or were internal halakhic considerations the sole basis for his decision? In any event, Colon’s approach ensures that careful attention is paid to the specifics of each case.69 2.4. Mental dysfunction and civil matters R. Moses Feinstein, in discussing the validity of a bill of divorce made out by one who is deemed mentally disabled on the basis of a single set of symptoms, elaborates on the passage from Maimonides.70 Reasoning that “partial exemptions are not made regarding precept-observance” (hatora lo hiyva bemitzvot lehatzain), he argues that, in general, Maimonides exempted such an individual from the obligation to perform even precepts for which he could be held responsible. One is either held fully responsible or not at all. Maimonides, we saw, links qualification for giving testimony to religious obligation: one who is mentally disabled is disqualified from giving testimony because of his exemption from precept observance.71

66 Radbaz and Kesef Mishne ad loc. cite the Geonim and Alfasi as the basis for this ruling. 67 Shulhan Arukh HM 35:8, quoting Maimonides. Darkhei Moshe, EH 119:5, taking Maimonides’ side, cites Mahari Weil, responsum #42. 68 In his Beit Yosef on Tur, EH 121, s.v. simanei hashote, Caro cites Colon’s responum #19; see Bleich 1983, p. 287. 69 See Bar-Ilan 1987, for an analysis of halakhic tests to distinguish between different mental disabilities, especially p. 106, where he points out that even those who limit mental disability to the specific symptoms described by the Talmud nevertheless have other options for rendering actions invalid on the grounds of diminished capacity. He also argues for distinguishing those born with mental disability from those who acquire it later. 70 Igrot Moshe, EH 1:120, on the divorce action of one with periodic delusions that he was the Messiah. 71 Code, Laws concerning Evidence 9:9–10.

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However, this should not be taken as categorically excluding one who is mentally disabled from functioning in the contractual realm, which is defined not by religious, but by personal obligation. R. Feinstein distinguishes between disqualification from precept-observance and responsibility for legal transactions. Strikingly, he rules that one who is periodically mentally disabled may, in his lucid intervals, serve as an intelligent agent (bar daat) in areas such as marriage and divorce ceremonies, which are not obligatory observances but have only contractual significance. Bleich surveys the stands of R. Ezekiel Landau and R. Moses Schreiber, concluding that they are in agreement that a person who manifests irrational conduct of a circumscribed nature is disqualified from serving as a witness and is exempt from mitzvot that he cannot fulfil in a rational manner but is nevertheless obligated to perform any mitzva whose fulfilment is not compromised by diminished mental competence.72 Thus although one may argue, as does R. Moses Feinstein, that one who is mentally unfit with regard to one precept is excluded from all observance, since the particular instance sanctions an inference about his overall mental functioning that, in turn, determines his religious standing, this can be qualified by distinguishing actions pertaining to optional undertakings, such as contracts, from compulsory observances. R. Feinstein’s ruling demonstrates the potential latent in the halakhic process for addressing complex emerging realities. 2.5. Healing the mentally disabled Bleich notes that there is no serious discussion of the positive obligation to cure the mentally ill in the entire corpus of halakhic literature.73 Maimonides, on the basis of the scriptural verse, “Thou shalt restore it to him” (Deut. 22:2), regarding lost property, mandates restoration of lost health. Bleich suggests explicitly extending this to the restoration of mental health as well. R. Moses Schreiber argued against attempts to treat the mentally disabled on the grounds that such treatment might necessitate transgression of dietary laws and the like, and “the uncertain effects of spiritual pollution” (timtum halev) override the possible benefits of treatment.74 More generally, his argument is that there is no obligation on the part of one exempt from precept-observance to seek to discharge the precepts, and certainly, not if such an effort involves the violation of other precepts.75

72 Bleich, 1983, p. 292. 73 Ibid., p. 298. 74 Referring to the effects of non-kosher foods on one’s spiritual well-being; see R. Moses Schreiber’s responsum #83 in Hatam Sofer 1, OH, discussed in the following chapter. 75 Ibid.

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Bleich urges, however, that the “immediate obligation” to provide care should take precedence. The halakhic authorities, aware of the often cyclical character of this disability, were reluctant to declare mental illness an irreversible fate, and hence did not formulate a definitive stance. Even if, for the duration of his illness, one who is mentally disturbed is categorically exempted from precept-observance, he remains created in the image of God.

3. Deafness/muteness prior to the nineteenth century We saw that the deaf-mute (heresh), classed as mentally disabled, was disqualified from precept-observance.76 However, to a great extent, this seems to be a result of the closed and inaccessible nature of the deaf-mute’s world until quite recently. 3.1. Defining heresh The Talmud distinguishes between the speech disabled, the hearing disabled and those both speech and hearing disabled. In exempting deaf-mutes, the mentally disabled and minors (among others) from the annual pilgrimage to the Temple, known as being “seen” (reiya, literally, “seeing”), the Talmud states: The Mishna77 speaks of the deaf-mute as it does of one who is mentallydisabled and of the minor: just as one who is mentally disabled, and the minor, lack understanding (lav bnei deia), so “deaf-mute” denotes one who lacks understanding.78 The Talmud explains that “wherever the Sages speak of heresh,79 it means one who can neither hear nor speak,”80 so that “he who can speak, but not hear;81

76 Mishna Rosh Hashana 3:8. Goldberg, p. 235, claims that it is an arbitrary biblical decree, gezeirat hakatuv, and unrelated to the level of the deaf-mute’s mental functioning. 77 Mishna Hagiga 1:1. Here, in exempting the heresh, the Mishna refers to a heresh who is deaf and mute. 78 BT Hagiga 2a, elsewhere translated, “those who do not know what they are doing” (BT Gitin 23a). Nevertheless, the Talmud (BT Shabat 153a) grades the mental capacities of minors, deaf-mutes and the mentally disabled in descending order. This acknowledgment of gradation in mental immaturity suggests that finer distinctions – perhaps even individual differences – can be recognized within diagnostic categories. 79 Along with the mentally disabled and minors; see Rashi on BT Hagiga 2b s.v. heresh. Rashi’s need to add the extra condition is easily understandable in light of the dispute with R. Jonah in JT Hagiga 1:1. 80 With some exceptions noted by Tosafot ad loc. s.v. heresh dumiya, in particular, BT Megila 19b and Hulin 2a. 81 Including even one who, though a deaf-mute, was not born thus and learned to speak, only later becoming a deaf-mute, Rashi ad loc. s.v. veeino shomeia. R. Simon b. Gamaliel asserts this in validating the heave offering of such an individual, in JT Terumot 1:1.

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hear, but not speak, is obligated (to fulfil the precept of appearing at the Temple).” The Talmud explains, One who can speak but not hear is termed a deaf-mute (heresh)82; one who can hear but not speak is termed mute (ilem). Both are deemed cognizant (pikhim) regarding all matters relating to them. Lacking understanding is pertinent only to one who is both hearing and speech disabled, but not to the only deaf or only mute individual. Exemptions and disqualifications in the Talmud that refer to the heresh thus apply only to deaf-mutes. This allows for inclusion of the merely deaf or mute in halakhic responsibility.83 Discursively, the Talmud inquires into the etymology of the terms heresh, in its weak sense of one who is deaf only, and ilem: And whence is it deduced that one who can speak but not hear is termed heresh and one who can hear but not speak is termed ilem? It is written: But I am as a heresh, I hear not, and I am as an ilem, that openeth not his mouth (Ps. 38:14–15). The proof is the biblical usage; the Psalmist himself defines these terms. The Talmud suggests that ilem comes from common usage: “As people say, ‘His speech has been taken away.’”84 3.2. Mental competence Deaf-mutes and the mentally disabled are exempted from precepts connected to Temple festivities because of their overall exemption from precept-observance, an exemption not granted to those who are only deaf or only mute: All are bound to be seen and to rejoice, except a heresh who can speak but not hear, or one who can hear but not speak; they are exempt from

82 Use of the term heresh here shows that “deaf-mute” is sometimes used to refer to those who are deaf only, the kind of exception noted by Tosafot. 83 The term heresh is discussed in JT Hagiga 1:1. R. Jonah claims that R. Judah, redactor of the Mishna, is not consistent in his use of terminology. He argues that heresh in Mishna Terumot 1:2 refers to the merely hearing or speech disabled, while at the same time pronouncing the sweeping rule that heresh always mean both hearing and speech disabled. R. Jonah proposes that heresh denote the hearing disabled but not the speech disabled; this proposal is rejected by R. Johanan, who explains that the examples cited by R. Jonah are exceptions; see Levin, pp. 137–47. 84 BT Hagiga 2b; the discussion also appears in BT Gitin 71a. The term for mute, ilem, is thus said to be an acrostic of IshtakiL (taken away) and Miluleha (his words), see Rashi ad loc. s.v. i bait eima.

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being seen. But though exempt from being seen they are bound to rejoice. Howerver, those who can neither hear nor speak, who are mentally disabled, or are minors, are exempt even from rejoicing, since they are exempt from all the precepts stated in the Torah.85 Rejoicing is a precept specific to the three pilgrimage festivals (Deut. 16:14), but distinct from being seen at the Temple. “Rejoicing” is expressed by partaking of a meal made from the peace offerings (shelamim).86 The deaf-mute is exempted from both “being seen” and “rejoicing,” but persons who are only deaf or only mute are obligated to “rejoice.” Since communication with them is possible, the deaf and the mute are considered responsible individuals. Only where their respective disabilities hinder or make impossible fulfilment of particular precepts are they exempted. The full mental capacity of those who are mute is acknowledged in a discussion of whether they can be taught: Does this then mean that one who cannot talk cannot learn? But behold there were two mute men in the neighborhood of Rabbi . . . who, whenever Rabbi entered the academy, went in and sat down, and nodded their heads and moved their lips. And Rabbi prayed for them and they were cured. It was found that they were versed in the law, Sifra, Sifre – the whole Talmud.87 Reservations expressed in the Talmud about the mental capacity of deaf-mutes do not, then, arise with respect to the deaf or the mute. The deaf-mute is not considered capable of volition (nidvat lev), literally, “giving from his heart.”88 In some cases, his actions constitute “deeds,” but his intentions lack the formal status of “proper intent.” His deeds are efficacious with respect to some observances,89 but not those where proper intent is required (e.g., the separation of heave offerings). The Talmud limits even the case where his deeds are considered sufficient to indicate intention: Where intention may be inferred from behavior, the deaf-mute’s intention may be so inferred, provided his behavior is deemed adequate. Even here, in some cases, such as divorce, it is considered adequate only under the supervision of a competent adult.

85 BT Hagiga 2b. We again find heresh used to denote the hearing-disabled only, as noted in Tosafot on Megila 19a s.v. hutz miheresh, another exception to the term’s ordinary denotation. 86 BT Hagiga 8a and Rashi on Hagiga 3a s.v. hayav besimha. 87 BT Hagiga 3a. 88 “Whose heart maketh him willing” (asher yidvenu libo), Exod. 25:1, referring to willingness to contribute offerings to the sanctuary. On the grounds that the deaf-mute cannot be known to intend to direct his contribution to the Temple, he is excluded from donating tithes, JT Terumot 1:1. 89 For example, guarding sacred foods, which are susceptible to defilement. The deaf-mute sons of Johanan b. Gudgada are cited as an example.

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But, Where intention cannot be inferred from behavior, but must be amenable to presumption [this being required by Scripture, as in the case of the heave offering], the heresh’s adequate deed is not sufficient to evidence intention, insofar as it is presumed that his capacity for intentional functioning is diminished.90 Only where intentionality can be inferred from behavior is the deaf-mute construed as intending, but not where a presumption must be made. 3.3. Communication by gestures in marriage and divorce Generally, the deaf-mute’s halakhic problem stems from the lack of confidence that his communication by means of signalling and gestures constitutes bona fide human communication. Yet in the case of marriage and divorce such communication is deemed adequate: “As he marries by gestures (remiza), so he divorces by gestures.”91 Ordinarily, marriage, to be valid according to biblical law, requires verbal affirmation on the part of the husband and wife; this should have disqualified the deaf-mute from ever marrying. However, the Sages specially ordained marriage for the deaf-mute by means of gestures rather than verbal communication, though they did not legislate an equivalent procedure for the mentally disabled, as is explained by Rami b. Hama: [In the case of ] a male deaf-mute and a deaf-mute woman where the Rabbinic ordinance can be put into practice, the marriage is legalized by the Sages. [In that of ] a mentally-disabled male and a mentally-disabled female, where the Rabbinic ordinance cannot be put into practice, since “no one can live with a serpent in one basket,”92 the marriage is not legalized by the Sages.93 The deaf-mute’s marriage is of Rabbinic status,94 instituted because otherwise deaf-mutes would be compelled to remain single.95 The deaf-mute’s ability to

90 JT Terumot 1:1. 91 Mishna Jebamot 14:1. 92 A proverb to the effect that there is no possibility of a satisfactory matrimonial union between one who is mentally disabled and a sane person, or two who are mentally disabled. 93 BT Jebamot 112b. 94 It is unquestionably not scriptural; see Code, Laws concerning Marriage 4:9. And see Magid Mishne ad loc., in support of this view against those who hold it to be of doubtful scriptural status, complicating divorce. 95 Unlike the minor, who outgrows his disqualification, BT Jebamot 112b.

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sustain a serious relationship is not called into question, despite the fact that he is not subject to precept-observance. This prerogative is not extended to the mentally disabled due to the unpredictability of their conduct and feelings. Communication by hand and facial gestures is considered sufficiently indicative of will and intention to be valid even for certain business transactions: A deaf-mute gestures and is gestured to (romez venirmaz). Ben Beteira says: He communicates and is communicated to by movements of the mouth (kofetz venikpatz) with regard to movable property.96 Hand gestures and movements of the head are generally accepted conventions, while mouth gestures are more idiosyncratic, hence less easily deciphered by those not in regular communication with deaf-mutes.97 But Ben Beteira, in contrast to the first view, allows mouth gestures in transactions involving movable property. Whether he would also allow it in matters of divorce is debated by the Talmud. Whereas the Mishna accepts head-nodding as obviously sufficient for giving instructions regarding a writ of divorce for someone who is only speech disabled, provided the court is persuaded that the disability has not affected his overall competence, as can be determined by testing his responses for consistency,98 in the case of deaf-mutes, validating these forms of communication is an innovation. 3.4. Recovery That an individual disqualified due to disability may recover is not considered out of the question. We saw this in the Aggadic midrash on the liberated disabled slaves who recovered at Sinai.99 This is an eventuality of halakhic consequence. Thus, a bill of divorce initiated by a deaf-mute who regained his speech or hearing, one who was blind but regained his vision, or one who was mentally disabled but recovered; or initiated by a person, while healthy, who then became disabled in one of these ways and subsequently recovered, is still considered valid.100 Notwithstanding the possibility of recovery, the Sages acted to alleviate urgent needs: the need for marriage and levirate divorce (halitza)101 by deaf-mutes through gestural communication. The Mishna rejects the claim of the oldest available brother to delay his either performing levirate marriage ( yibum), or granting the widow of his deceased brother a levirate divorce, so that an even

096 097 098 099 100 101

Mishna Gitin 5:8, BT Gitin 59a, JT Gitin 5:8. Rashi ad loc. s.v. romez. Mishna Gitin 7:1. Numbers Rabbah 7:1, discussed above in Chapter 1. Mishna Gitin 2:6. A special divorce rite for a levir (a husband’s brother) who does not want to honor his obligation to marry his deceased brother’s widow.

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older brother, presently a deaf-mute or mentally disabled, may recover and take his rightful role.102 It is rejected not because the possibility of recovery is considered unrealistic, but out of consideration for the widow, who should not be kept in marital limbo.

4. Contemporary deafness/muteness Dramatic developments in the methods by which deaf-mutes were taught basic speech came to the attention of halakhic authorities some one hundred years ago, when a pioneering institution in Vienna demonstrated that deaf-mutes could be taught to communicate to a far greater degree than was previously thought possible. Contrary to the earlier view that the deaf-mute lacked understanding, he was now shown to have a range of understanding virtually identical to that of his non-disabled peers. The contemporary halakhic authorities must now reevaluate the position of Jewish law on the deaf-mute. According to Immanuel Jakobovits, “their religious and legal status may now be modified.”103 The situation poses a challenge for the tradition, which must integrate contemporary knowledge and sensibilities without undermining its integrity. The case of the deaf-mute affords a glimpse of the inner dynamics of the vibrant legal tradition of halakhic deliberation via responsa. Over the past century and a half, responsa for and against changes in the traditional halakhic status of the deaf-mute have been issued by various rabbinical authorities.104 Once the cognitive capacities of deaf-mutes were acknowledged, later authorities granted enhanced halakhic status even regarding individuals who did not actually acquire speech or hearing. 4.1. R. Azriel Hildesheimer’s responsum on deaf-mutes105 The case concerns the halakhic status of a deaf-mute who, attending the “School for Deaf-Mutes” in Vienna, learned to speak through new educational techniques. His faculties are different from the average person’s only in his lack of hearing and in his stammered, hesitant speech. The degree of his intelligence

102 BT Jebamot 39a; Tosafot ad loc. s.v. ubeheresh veshote; Code, Laws concerning Levirate Marriage and Halisah 2:8. 103 Jakobovits, p. 292 (cited by Astor, p. 102). The same sentiment is expressed by Herbert Schwartz, who argues that “the deaf are now a responsible group for all intents and purposes” who “deserve the acceptance of their community” and for whom “we must permit substitute forms of communication required by the normal interplay of the deaf in a hearing world, in all legal matters. We can no longer wait for a time when God will unstop the ears of the deaf ” (1974, p. 63, cited by Astor, pp. 101–2). 104 See Bleich, 1979, for a review of these discussions. 105 Azriel 2, EH, HM and Addenda #58., first published in Yiddish in 1886.

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and understanding in business transactions, however, is like that of those in full possession of their faculties. The respondent, R. Hildesheimer, reviews three possible halakhic positions: 1

2

3

Deaf-mutes have attained a new status, and are like those in full possession of their faculties; hence, they are fully qualified, and obligated, to observe the precepts; The status of deaf-mutes remains the same, that is, the same as that of the mentally disabled; they remain exempt and disqualified from preceptobservance; The status of deaf-mutes is controversial and undecided, and therefore, to be adjudged stringently.

He cites evidence for and against positions (1) and (2). In support of the first view, he cites R. Haim of Sanz: Whereas I have written . . . that the actions of deaf-mutes, the mentally disabled and minors do not count at all . . . [speech-abled deaf] just as they marry, also divorce; so too, in our case, [of deaf-mutes who learned to speak], if they speak even a little, though stammering, they are definitely within the status of speech-abled who may with scriptural sanction marry and divorce according to all opinions, except that of Maimonides.106 He then notes that R. Joseph Guggenheimer, head of the rabbinical court in Kalin, Bohemia, demurred that R. Haim of Sanz was not, in fact, in agreement with the liberal stance of R. Judah Leibush in Melekhet Heresh. Hildesheimer disagrees with this assessment of R. Haim, adducing all kinds of literary inferences from his writing, to show that, while R. Haim indeed questions the deaf-mute’s halakhic functioning ab initio (say, with regard to ritual slaughter of meat), the crux of the matter is what happens post facto. Is his religious action deemed valid or not? He interprets R. Haim as concurring with his own view that it is. R. Eliezer Zeev Alt of Kobersdorf wrote him that twenty years earlier, he had also felt that the status of the “new deaf-mute” should be that of “one in full possession of his senses” (bar daat), yet he was hesitant to actually rule to that effect. He thus decided to rule strictly where one’s verbally-expressed commitment is halakhically irreversible, even if retracted immediately.107 Hildesheimer explains

106 Divrei Haim 2, EH, #72, addressed to R. Judah Leibush of Lvov, author of the first extensive responsum on this subject. His Melekhet Heresh includes the responsum, laudatory criticism by R. Haim of Sanz, and R. Leibush’s reverential reply to the criticisms in the form of an additional responsum with notes appended. This work should not be confused with a later work of the same name, Melekhet Heresh by R. Ezekiel Hefetz, comprising two volumes: Tiv Gitin Vekidushin Leheresh, on marriage and divorce, and Tiv Yibum Leheresh, on levirate marriage and the deaf. 107 That is, in matters of blasphemy, idolatry, marriage and divorce, see BT Nedarim 87a.

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the logic of this view by adducing Rabbenu Nissim’s explanation that in these instances complete and total assent is presumed, rendering the commitment irreversible. Reversibility depends on being able to claim that what was expressed was not completely worked out in the person’s mind. The retraction is accepted as a more accurate reflection of his intention. This cannot be argued where, because of their momentousness, verbal expressions are presumed to express one’s intent faithfully. Here, subsequent correction cannot override the initial declaration. R. Alt, concerned that perhaps the new deaf-mute is not, after all, competent to convey an absolute and irreversible commitment, despite having gained halakhic standing, thus protects him from such irrevocable declarations. However, this implies that in contexts such as that of prayer, he would take a liberal position, counting the new deaf-mute as a member of the prayer quorum. In support of the second view, R. Hildesheimer adduces Maharam Shick: Despite all that, it seems that a deaf-mute who has been trained to speak at a school, has yet not definitely lost his status as someone not in possession of all his faculties, and therefore he should not be counted in a prayer quorum or relied on to carry out a precept by acting, nor should meat he has ritually slaughtered be eaten.108 R. Hildesheimer emphasizes that, even here, there is at least a doubt, which in itself reflects a change in status. In cases where cumulative doubts are halakhically significant, such doubt may contribute toward the rendering of a lenient opinion.109 He then cites Maharam Shick’s allegedly iron-clad proof that the status of a congenital deaf-mute cannot be considered to have changed on the basis of his later being trained to speak. The Talmud cites R. Kahane’s view that “if a deafmute can signify his meaning by writing, a bill of divorce may be written and given to his wife.”110 Its import is to extend the ruling that, “if a [healthy] person is struck dumb and they say to him, shall we write a bill of divorce for your wife, if he nods his head . . . it is sufficient.”111 This seems to indicate that the categorical teaching, “if he, however, became a deaf-mute or mentally disabled, he may never divorce her,”112 is open to lenient interpretation. However, Maharam Shick argues, this is not so. R. Kahane’s case is undoubtedly that of one who was abled and then became disabled.113 Maharam Shick explains that the concession that

108 Hildesheimer, ibid., citing Schick’s responsum EH #79. 109 For example, where meat he slaughters is mixed up with that slaughtered by others, so that a strict decision involves financial loss for many. The new deaf-mute’s doubtful status, taken together the other two considerations – the mix-up, and the financial loss, justifies a lenient ruling, though taken alone, each consideration would not suffice to justify a lenient decision. 110 BT Gitin 71a. 111 Mishna Gitin 7:1. 112 Mishna Jebamot 14:1. 113 Rashi on Gitin 71a s.v. heresh.

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writing is to be considered as speaking (dibur mitokh haketav) applies only in such a case, but not to one who is congenitally deaf-mute. The strict interpretation applies to a marriage that has scriptural standing, having been transacted while he was in full possession of his faculties. Subsequent divorce as a deaf-mute has only Rabbinic standing. While bona fide in the case where the marriage was contracted on the same Rabbinic basis, it is not so where the marriage is of scriptural standing. Rescinding marital status on the strength of Rabbinic authorization for divorce by gesturing thus suffices only for a Rabbinically-ordained marriage of one who was a deaf-mute prior to marriage. Similarly, he argues, in our case, training a congenital deaf-mute to speak is no more significant than a “monkey’s random action (maase kof bealma)” and is not indicative of volitional intelligence, but only of rote training. R. Hildesheimer counters with two arguments: first, Maharam Shick is begging the question, namely, whether learned speech by one born a deaf-mute attests to mental clarity. How does he know that R. Kahane would not extend this dispensation to the new deaf-mute? It could be argued that he might even favor him over one who is now effectively deaf-mute, though not congenitally so. Second, our case is not analogous to R. Kahane’s, since the possibility of educating the congenital deaf-mute to speak was unknown in the talmudic period, and in that of Maimonides. Their judgments about deaf-mutes are thus limited to their reality. Proceeding to his own contention, R. Hildesheimer argues that the question hangs on whether the deaf-mute’s intelligence is considered essentially flawed, or held to be normal, but locked in like a hidden treasure. The first hypothesis was accepted by everyone, including the Gentiles, until Victor August Jaeger, professor at Wurtemburg, in his Guide to the Education of Deaf-Mutes and the Speaking-Disabled, in Religion and Other Subjects Taught in Schools, showed that the deaf-mute has all the faculties for the acquisition of speech: intelligence, the capacity for learning a language and the requisite physical organs for doing so, the sensibility to absorb the forms of speech, and the means to communicate with others. Putting the question into its historical context, R. Hildesheimer then summarizes his research on the new technique, adding testimony by Johanan Eichinger, Director of the Institute for the Deaf in Linz, Austria, in support of the thesis that the deaf-mute is cognitively normal, though his intelligence is more difficult to develop and bring to consciousness. He cites the opinions of two experts, Edward Walter, Director of the Institute for the Deaf in Berlin, who divides the intelligence of deaf-mutes, as for hearing people, into three classes – outstanding, average, and limited, and Joel Deutsch, Director of the Institute for the Deaf in Vienna, who wrote to him regarding those who had passed the training program, asserting that they were of decided intelligence. To illustrate this contention, he sent him an essay by one Bernhard Brill, commenting that he doubted whether any non-disabled individual could match his lucid and incisive style. 122

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Commenting on the rich content of this writing, Hildesheimer avers that, “reality contradicts what the Master Maharam Shick wrote, that the learned actions of the deaf-mute are like the actions of an old monkey that was merely trained by repetition without volition and free choice.” The empirical evidence vindicates R. Judah Leibush and R. Haim of Sanz. He grants that since not every school-educated deaf-mute becomes fully mentally capacitated (bar daat), individual assessment is required. R. Hildesheimer appends to his opinion some critical responses and his replies. One of the most interesting deals with the relationship of Jewish law to newly emerging scientific knowledge, in particular, where the latter contradicts halakhic assumptions. Hildesheimer notes that some argue for the unconditional primacy of halakhic assumptions, for example, R. Moses Arye Bamburger of Kissingen: Certainly, our Sages knew of the possibility of deaf-mutes articulating slightly with their lips. Nonetheless, they knew that this does not elevate their capacity to that of those fully cognitively endowed so that they can be considered precept bearers (metzuvim veosim). In the latter class are to be included only those whom the Almighty has graced with the full and complete intellectual capacity with which the Almighty has seen fit to grace the human race. . . . Know that the Sages pondered the depths of this question, keeping in mind that R. Eleazar questioned whether a deafmute is feeble-minded or not.114 Surely his reasoning was based on a fundamental understanding of the wisdom of the soul (hokhmat hanefesh). Nevertheless, the Sages, whose rulings are obviously based on [the wisdom of the soul] as well, disagree with R. Eleazar, and the law is in accordance with their view. Another advocate of the incorrigibility of any halakhic assumption is R. Moses Leib Engel of Sassin. R. Moses Leib Engel presents the view of the Rashba that one may not, under any circumstances, undermine a tradition of the Sages,115 adducing Rashi’s view116 that the status of the deaf-mute is “law communicated to Moses at Sinai,” and hence, incontrovertible by any subsequent findings to the contrary.117 He cites Maimonides’ ruling that one who became a deaf-mute after marriage can never divorce unless he is healed.118 So too, a congenital deafmute’s marriage, after he learns to speak, surely cannot be of scriptural standing.

114 115 116 117

BT Jebamot 113a. Responsum #98. BT Hagiga 2b s.v. heresh. This is also the position of R. Menahem Mendel Krochmal of Nikolsburg, in Tzemah Tzedek #77, on two deaf-mutes who were “literate and proficient in the use of the prayerbook” (cited by Bleich, 1983, p. 190, with a list of concurring authorities). 118 Code, Laws concerning Divorce 2:17.

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R. Hildesheimer’s rejoinder is that the legal authorities arrayed against his innovative view based their rulings on what they took to be the facts of the matter, namely, that deaf-mutes lack adequate mental capacity. That subsequent experience has afforded the insight that deaf-mutes have mental capacity that can be effectively developed, in no sense contradicts the Sages, who were speaking of an entirely different set of circumstances. As to the view that teachings regarding the deaf-mute are an “undisputed” tradition from Moses at Sinai, this is obviously incorrect, since the Tannaim themselves dispute the status of the deaf-mute.119 While accepting Maimonides’ ruling that healing is required to change the status of the deaf-mute, he suggests that the individuals in question may indeed be deaf-mutes who have recovered. An ingenious defense of a new status for deafmutes, based on this very point, is offered by R. Haim Halberstamm of Sanz. The new deaf-mutes’ speech implies that, in some minimal, perhaps subliminal way, they must also hear, because Maimonides, a medical expert, claims that muteness results from the inability to hear.120 They cannot, therefore, be like the deaf-mutes whom the tradition exempted from precept-observance.121 R. Hildesheimer renders a favorable reassessment of the deaf-mute: one who is capable of learning speech, even in its most garbled form, is restored to the status of being obligated to observe the precepts. The areas of the law affected by such a decision are spelled out in R. Leibush’s Melekhet Heresh: 1 2

3

Even unsupervised, their ritual slaughter is valid, even according to Maimonides. He cites only the reservation of Or Zarua. Marriage and divorce have scriptural standing, provided that in case of divorce, the writ is drawn up by the individual himself (i.e., the individual authorizes the scribe to write it on his behalf ). Any reservations about the cognitive capacity of deaf-mutes that might cast doubt on the validity of these commitments are neutralized by the empirical facts. For halitza (levirate divorce), a higher standard of mental clarity is required. Following the views of the Ramban and the Ritba, and disregarding the more lenient options of Rashi, the Tosafists and the Tur, R. Leibush invalidates the halitza of deaf-mutes. Since doubt exists, he remains cautious. R. Hildesheimer, though, infers from R. Halberstamm’s words that, while he recommends levirate marriage over halitza for deaf-mutes, post facto he does not disqualify their halitza.122

119 See, for example, BT Jebamot 113a. 120 Maimonides, Commentary on the Mishna, Terumot 1:1; this is one reason why the mute are sometimes referred to as deaf. 121 R. Halberstamm’s response to R. Leibush’s Melekhet Heresh, published with the latter ( p. 15a), see note 106. 122 R. Leibush, Melekhet Heresh, p. 23a, having serious reservations even as to the validity of levirate marriage here, bemoans the brevity of R. Halberstamm’s comments on this point.

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4

5

6

While R. Leibush validates their contractual standing in acquiring and transferring movables, in deference to Maimonides he limits their standing in real estate transactions, where full perceptual capacity is required. Maimonides disqualifies even one who is only deaf. As to giving testimony, R. Leibush distinguishes cases where their testimony is subject to full cross-examination (derisha vehakira), as in criminal law, and those where it is not (eino din merume), as in monetary or marital law. He invalidates testimony in the former because, while the intelligence of deaf-mutes is not in question, their perceptual capacity is. Regarding religious observances, here, like the non-disabled, they are fully obligated. They can be counted in the prayer quorum (even according to Maimonides, who restricted them in business dealings).123

4.2. R. Eliezer Waldenberg’s responsum on deaf-mutes In the spirit of R. Azriel Hildesheimer, R. Eliezer Waldenberg amasses the testimony of halakhic authorities to support the view that those who learn speech in modern schools for the hearing disabled are not to be classified as the deaf-mutes of the Talmud.124 He cites R. Asher Helfoin on the status of a deaf-mute who had thoroughly mastered all the subjects taught at the special school he attended, was capable of reading and understanding texts about crafts, and engaged in business. Rejecting his disqualification from halitza, Helfoin writes: One can say that only with regard to a deaf-mute who does not grasp what is spoken to him. What he knows and understands is only on the basis of gestures. Since his mind is weak, he does not by himself hear or properly understand that which is spoken to him. Not so the deaf-mute who is trained to visually grasp speech coming from the one addressing him so that when others speak to him, he is capable of understanding them. This is a skill (melekhet mahshevet) that he has mastered due to the teacher’s having worked with him on improving his cognitive abilities, advancing him upwards on the ladder of wisdom. He has thereby learned to understand what he did not know previously. All must admit that such a person is in complete possession of his faculties.125 This discussion is preceded by an anecdote told of R. Abraham Samuel Benjamin Sofer (1815–71), author of the Ktav Sofer. Amazed at the achievements of the students, who understood so much without being able to speak, he ordered the

123 Melekhet Heresh, pp. 9a–11a. 124 Tzitz Eliezer, 18:46. 125 Rosh Hamizbeiah #14.

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director of the Viennese school for deaf-mutes to teach them to don phylacteries without the least concern that they might mishandle them. Their cognitive functioning so obviously normal, he was confident the students were obligated to fulfil the precepts.126 Now Sofer gave this ruling regarding educated deaf-mutes who were unable to hear or speak even after their training, but whose cognitive functioning was undeniably competent. R. Waldenberg also cites decisors who insist on some minimal evidence of hearing or speaking. Some argue that since comprehension of speech is constitutive of human identity, the most minimal evidence that speech is perceived, even with a hearing aid, even if only undifferentiated sound, or when assisted by lip reading, suffices for the deaf-mute to be considered in possession of his faculties.127 Since one is not considered a deaf-mute if he can either hear or speak, R. Waldenberg emphasizes that should a deaf-mute regain his hearing, this too would suffice for his status vis-a-vis precept-observance to change.128 He adds that applying the talmudic category of heresh is undisputed only with regard to the congenital deaf-mute. As it is disputed regarding non-congenital deaf-mutes, they merit halakhic standing.129

4.3. R. Moses Feinstein on emotional capacity Opposing the projection of disability to the deaf-mute’s emotional capacity, R. Moses Feinstein rejects R. Ezekiel Landau’s argument in Noda Biyehuda that because a deaf-mute is considered to have insufficient intention for preceptobservance, it can be assumed that he is devoid of erotic and emotional capacity.130 He distinguishes between religious motivation and erotic, emotional, instinctive feelings. The deaf-mute, and indeed, the sexually-mature minor, are quite capable of experiencing the latter naturally. Religious obligation, however, is based upon cognitive capacity.

126 Excepting those precepts that depend upon physical hearing. Reported by his grandson R. Simha Bunim Sofer in Shevet Sofer, EH #21. 127 He adduces the responsum of the Rosh cited in Pri Hadash on EH 121:6 that artificially-magnified hearing via a hearing horn is sufficient, even when without it the individual in question would hear nothing. 128 Citing the Perisha on Tur HM 235:20. 129 On the strength of Maimonides’ Commentary on the Mishna, Terumot 1:2, concurred with by R. Obadiah Bertinoro ad loc., claiming that the cause of muteness is deafness from birth, the Later Authorities dispute the disqualification of a deaf-mute who acquired the condition after birth. See Keren Ledavid #27 s.v. umikol makom, cited in Tzitz Eliezer 18:46. R. Waldenberg considers the subject in the context of a discussion of a divorce appeal of a hearing and speech disabled couple. The district rabbinical court of Tel Aviv had ruled that the marriage was of scriptural status despite their disabilities. See Tzitz Eliezer 15:1 for a discussion of the question of the halakhic status of non-congenital deaf-mutes. 130 Igrot Moshe EH 1:154, on levirate marriage.

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4.4. New vocabulary To avoid the old associations with mental deficiency that the term “deaf-mute” connotes in the halakhic mind, some have called for the creation of a vocabulary that encourages fresh attitudes: I think the word heresh ought to be abolished from our modern vocabulary. We ought to create a new Hebrew word for the deaf, or for the hearing impaired. That will help us sever the nexus; break the connection between deaf people today and that terrible categorization of the heresh with either the shoteh or the katan . . .. We should cease thinking of the heresh at its worst, of the category of total disability, and start thinking of the heresh of today with his modern techniques and fundamental changes. Revolutionary strides have been made in helping the hearing-impaired communicate.131 (emphasis in original)

5. Conclusion With respect to the status of the blind, the mentally disabled and deaf-mutes, it is readily apparent that there is no consensus among halakhic authorities. There is a conservative tendency that strictly upholds the traditional classifications and characterizations, viewing them as categorical and not subject to reassessment. There is, however, an equally, and perhaps more weighty tendency not to accept without qualification the received views on the halakhic standing of individuals with these disabilities. On this approach, reasonable attempts are to be made, in light of new discoveries as to their capacities and potential, to situate the disabled within the tradition according to their physical and mental abilities. We noted that the fact that the law is articulated in terms of specific inclusion criteria is conducive to such flexibility. Finally, to say that individuals are exempt or disqualified from observance of the precepts is not tantamount to relegating them to non-covenantal status. They may take on obligation voluntarily, a move generally perceived as a positive covenantal achievement.

131 David Feldman, p. 23. I discuss this in Chapter 11.

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The Jewish tradition affirms each individual’s inherent worth as a person, regardless of what he achieves, accumulates, or contributes to the community. This chapter examines a number of disparate areas of the law that reflect ways in which this affirmation is expressed with respect to the disabled. The first area examined is the law of torts, specifically, the law regarding assaults on self-esteem. These assaults are actionable in court, and damages are assessed in economic terms for the purpose of restitution. Are the disabled entitled to such indemnity? Are they liable for damages they cause to the self-esteem of others? That is, are they, in this regard, considered to have the same elemental rights and legal obligations as others? The second area examined to ascertain the law’s attitude to the elemental dignity of the disabled is that of the obligation to procreate. Do disabled children fulfil their parents’ religious obligation to procreate? In a similar vein, we will consider laws governing violation of the Sabbath to save a disabled person’s life or for circumcision of a disabled baby. We then review the rights of the disabled to education. Finally, we explore two somewhat obscure points on which the law could be construed as undermining this elemental dignity: the legally-sanctioned “exploitation” of certain disabled persons in the service of precept-observance on the part of others, and the ambiguous status of the disabled with respect to the “ordeal of jealousy.”

1. Disability and the law of torts Talmudic law requires indemnification for assault on another’s pride, to the extent of the humiliation caused, assessed over and above other kinds of damages. That the self-respect of the injured party is at stake is evident from the fact that the perpetrator, in restitution, must also appease the injured party by asking forgiveness for the assault, an element absent from ordinary torts.1 To what extent are those

1 Mishna Baba Kama 8:7; Code, Laws concerning Wounding and Damaging 5:9–10. The injured party is admonished not to be unforgiving.

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with disabilities eligible for or liable to make such compensation? The Talmud focuses on visual and mental impairment, taking for granted that those with orthopedic, hearing or speech disabilities are entitled and liable regarding such torts. The issue of humiliation, as an injury that must be indemnified, arises within the larger framework of tort liability, which covers five factors: depreciation (nezek), pain (tzaar), healing (ripui ), loss of time (shevet) and degradation (boshet).2 The first four categories are objective sources of indemnity for damages. The fifth, degradation, reflects empathy for human suffering. With respect to animals, the law takes physical suffering – tzaar baalei haim3 – into consideration, but not embarrassment. As an actionable tort, the notion of degradation reflects the human victim’s distinctive experience. The Rabbinic sources are sensitive to the complexity of the sociological and psychological factors that play a role in the experience of humiliation, as well as to the subjective component: it is to be assessed “in accordance with the status of the offender and the offended.”4 Degradation caused by one of lesser social standing, the sources suggest, is experienced more acutely than assault by a social peer; it is more humiliating.5 One could, however, argue to the contrary that offense by one of lower social standing is experienced as less damaging than that inflicted by one of higher social standing in that it can be more easily dismissed. Further, it could be argued, one of higher social standing may be less sensitive to assault against his person than one of lower social standing: his sense of personal identity and status is strong, while the latter is insecure. The Talmud notes three approaches to assessing humiliation: All should be considered as if they are freemen who have become impoverished, since they are all children of Abraham, Isaac, and Jacob; this is the view of R. Meir. R. Judah says, the eminent man in accordance with his eminence, the insignificant man in accordance with his insignificance. R. Simon says wealthy persons are considered as if they were merely freemen who have become impoverished, whereas the poor are considered to be at the level of the least among them.6 R. Meir’s ideal, egalitarian approach – treating all victims as freemen, that is, as non-slaves, disregards the victim’s actual status. This sets an upper limit to damage payments, thereby ensuring that very prominent persons do not receive inordinate sums.7 Some explain this approach as due to the difficulty of determining who is

2 3 4 5 6 7

Mishna Baba Kama 9:1; also BT Baba Kama 83b. BT Baba Metzia 32a–b. Mishna Baba Kama 8:1, anonymous. Kehati, on Baba Kama 8:1. BT Baba Kama 86a. Rashi ad loc. s.v. keilu yardu.

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embarrassed before whom.8 These explanations overlook R. Meir’s explicit rationale, that “they are all the children of Abraham, Isaac, and Jacob,” appealing to the basic equality of all Jews on the basis of covenantal lineage, despite differences of status due to contingent circumstances. Damages are to be assessed according to a common potential; degradation is conceived as an assault on that common status. At issue, on R. Meir’s view, is not the experience of humiliation, but rather the assault against the shared covenantal endowment of personhood. R. Judah’s individualistic approach assesses the current status of the victim, assessing one of high social standing according to his importance and one of low social standing according to his social insignificance, evaluating damages on an individual basis. What counts is not potential, but the particular facts of an individual’s station. Both R. Meir and R. Judah seek to preserve individual dignity. Because social status is often inherited rather than earned, R. Meir feels that too much can be made of the accidental particulars of one’s biography; he thus favors the essentialistic ascription of covenantal identity as the standard by which damages are to be assessed. R. Judah considers such an abstract standard, however noble, inconsonant with the experiences of the individual whose assaulted dignity and selfesteem it is the purpose of this indemnity to redress. The third alternative, R. Simon’s, is based on a conception of social class. He suggests that individuals belong to one of two classes, the wealthy and the poor; claims for compensation should be assessed accordingly. Like R. Judah, he opposes abstract assessment of degradation unrelated to the victim’s station in life, but limits the degree to which individual differences will be recognized. This solution, accepted in the Talmud as that which best accords with the Mishna, can also be understood as a practical strategy for limiting payments rather than as expressing a third principle. In identifying the author of the anonymous Mishnaic teaching that the payment for degradation depends on the status of the offender and the offended, the Talmud first rules out R. Meir, since he clearly disregards the individual’s actual status. Though R. Judah’s individualistic way of assessing damage to dignity would have been compatible with the Mishna in question, it rules him out too: “for the Mishna [subsequently] states that he who insults even a blind person is liable, whereas R. Judah says that a blind person is not subject to the law of degradation.”9 That is, if R. Judah here means that the blind do not experience degradation, and hence cannot sue for damages, it would be inconsistent to ascribe the general teaching regarding assessment to him. Perhaps, however, R. Judah should be understood as developing his well-known view that the blind are exempt from precept-observance,

8 Tosafot ad loc. s.v. keilu. 9 BT Baba Kama 86a.

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extrapolating that this low halakhic status renders insignificant the degradation they cause others or that others cause them. The Talmud conjectures that even according to R. Judah, the blind do experience degradation and can receive restitution for it. R. Judah’s assertion that the “blind are not subject to degradation,” only exempts them from liability for degradation they inflict on others. Were this the case, the Mishna on the assessment of damages could consistently be ascribed to R. Judah. However, its ambiguity does not allow the Talmud to resolve the question of the identify of the author of the anonymous ruling. One who is blind indeed experiences humiliation, according to R. Menahem Meir of Perpignan, the Meiri: “for even though he does not see, still he experiences shame in his heart when he knows that he has been insulted in public.”10 The Meiri seems to be in line with the view of R. Meir, who, by minimizing the actual differences between people, and relating only to their covenantal endowment, is implicitly supportive of the dignity of the disabled. Whatever their actual status, this in no way affects their status as descendants of Abraham, Isaac, and Jacob, the common endowment of all Israel. This contrasts with the interpretation that sees R. Judah as maintaining that disability pervades the entire person, including the pride of self that is normally evidenced in the capacity for humiliation. With his stress on the individual’s actual social status, R. Judah implicitly reinforces the low status of the disabled, using society’s perception of them to gauge their entitlement. However, identification of this view as that of R. Judah was rejected, as the Sages doubted the correctness of this interpretation. On another interpretation of R. Judah, even a disabled person’s right to damages for degradation should reflect his individual experience. The disabled, like the nondisabled, should not be assessed uniformly, for disability alone cannot define the experience of degradation. These views assess the disabled person’s degradation using criteria applicable to the able-bodied. The assumption is that one who is disabled has the same sense of self-awareness and awareness of shame as does the able-bodied individual. The limits of this inclusion are explored in a talmudic analysis of the minor’s eligibility to be indemnified for degradation, on the basis of his capacity for experiencing humiliation. To the question, “Is a minor subject to degradation [and thus eligible to receive damages]?” R. Papa affirms that this is so, “if upon being reminded of some insult, he feels abashed.”11 Making a minor’s right to indemnity contingent upon his experiencing humiliation challenges R. Meir’s approach. The same qualification could be applied to the blind, or to those with other disabilities, where the disabilities limit

10 Meiri on Mishna Baba Kama 8:1. 11 BT Baba Kama 86b.

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the capacity to experience assaults on one’s dignity. Were the minor’s exclusion deemed solely due to his minority, his exclusion would have no bearing on the case of disability. The question of the limits of indemnity is explored further: One who insults a naked person, or one who insults a blind person, or one who insults a person asleep, is liable, though if a sleeping person insults others, he is exempt. If one, in falling from a roof, did damage and also caused someone degradation, he is liable for depreciation but exempt from degradation unless he intended to inflict it.12 Both issues are pertinent to the disabled. The first concerns liability to a victim beyond embarrassment, either because he is already compromised – for example, if he is naked, or due to disability such as blindness, or because he is asleep, and does not experience humiliation. The Mishna nevertheless holds the perpetrators liable. The second concerns the liability of the blind for degradation caused to others. Only R. Judah exempts the blind, while the Mishna implies that they are liable, which the Talmud infers from the fact that only one who was sleeping is explicitly exempted. Had the blind also been exempted, this too would have been explicitly stated. Apparently, the blind are not to be considered those who are asleep, for only the latter can be presumed not to intend harm. R. Judah’s rationale for exempting the blind from such liability is the assumption that their disability renders them incapable of bearing full responsibility for their actions. The Mishna rejects this view, holding the blind liable.13 To assess entitlement for indemnity for degradation, another question to consider is whether just the victim should be taken into account, or his family and community as well. The Talmud distinguishes between three components of humiliation: (1) the victim’s subjective experience of humiliation (kisufa, literally, covering one’s head in shame); (2) the breach of community standards in the objective insult attending public disgrace (ziluta); (3) the family’s loss of face through insult to one of its members.14 In exploring the concepts in relation to the case of one who insulted while asleep, the Talmud introduces the question of the mentally disabled: R. Abba b. Memel asked: What would be the law where he humiliated a person who was asleep but who died [before awakening]?

12 Mishna Baba Kama 8:1; BT Baba Kama 86b. 13 Rabbenu Hananel rules that the law is not according to R. Judah, citing as evidence R. Johanan’s view that the law always follows the anonymous teaching. See Otzar Hageonim ad loc. 14 Rashi on BT Baba Kama 86b.

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According to R. Zebid, the salient question is whether the disgrace is personal or public, while according to R. Papa, whether personal or family disgrace. Consider the former view: Zebid said: The issue involved is this: [is it paid] because of the personal insult, and as in this case he died before awakening and was never insulted [no payment should be made]? Or on account of the public disgrace, and as there was disgrace here [payment should be made to the heirs]? Is insult to be defined according to what is experienced subjectively by the individual, or objectively, by social affront, regardless of whether the individual is capable of taking offense? R. Judah the Prince’s view is adduced: A deaf-mute and a minor are eligible for indemnity for degradation, but a mentally disabled person is not. The Talmud then argues that Rabbi’s view holds only “if you say that degradation is paid on account of the [public] disgrace.” In that case, it makes sense that “a minor should be paid for degradation,” since what is at issue is not his personal suffering, but an objective criterion. However, “if you say that degradation is paid on account of the personal insult, is a minor in fact subject?” The Talmud suggests that some minors may have a sufficiently developed sense of self to preclude categorically ruling out their experiencing of degradation. This is supported by the teaching of R. Papa that: [it is payable] if upon being reminded of some insult, he feels abashed. Here we have a minor who would, were the insult recalled to him, feel abashed. If, on the other hand, it is paid for public disgrace, why is it not applied to one who is mentally disabled? The Talmud explains that “the mentally disabled person himself constitutes a disgrace second to none.” Public disgrace of one already held in such low esteem by the public does no further damage. However abhorrent we may find this sentiment, and the social realities it reflects, we must keep in mind that the court is engaged in an assessment of damages, putting the burden of proof on the plaintiff suing for damages. R. Abba b. Memel’s inquiry regarding the indemnity for an insult to a sleeping person who died cannot be resolved using R. Zebid’s principle. The Talmud seeks an alternative solution, that of R. Papa, who formulates the dilemma differently: [Is degradation paid] because of personal insult, and so in this case, where he died, he did not suffer any personal insult, and no payment should be made. Or is it paid on account of the insult suffered by the family? 133

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Again one can ask why would this not apply in the case of insult to one who is mentally disabled. Regardless of his experience, his family is offended if someone insults him. Here, as before, the Talmud replies: It may, however, be said that the mentally disabled person by himself constitutes a degradation [to them] second to none. Even where family honor is the basis for indemnity, it is argued, the fact of a mentally disabled family member is already a source of maximal loss of face for the family, obviating the need for indemnity for the family’s humiliation. From our perspective, the talmudic discussion is highly problematic, on two points. First, the argument that the experience of degradation by deaf-mutes and self-aware minors makes them eligible for compensation, whereas the mentally incapacitated are presumed not to have this experience, making them ineligible. Second, the argument that a mentally disabled person may already be held in such low esteem by society, or his family may have already experienced such loss of face because of his condition, that they cannot be further embarrassed by additional insult to his person. The analysis is not altogether discouraging: the Talmud’s argument regarding minors allows the inference that experience is not monolithic. As to the argument from social reality, this is a contingent situation that can be changed through education. And the position of the Talmud here is supportive of deaf-mutes: while elsewhere frequently grouped with minors and the mentally disabled, here they are explicitly differentiated from them as entitled to indemnity for insult. As we saw in the previous chapter, Jewish law is receptive to new scientific knowledge about the potential of those with disabilities. Presumably, growing acquaintance with the facts of mental illness will generate a reassessment, similar to that proposed regarding the deaf-mute, of the emotional integrity of the mentally disabled, which is at the heart of the halakhic discussion of degradation.

2. Fulfilment of the obligation to procreate The precept of procreation is considered a great blessing and obligation in Jewish law (Gen. 1:28; 9:7).15 To the Psalmist, children are “a heritage of the Lord” (Ps. 127:3). The Mishna states: No man may abstain from keeping the law, “Be fruitful and multiply” (Gen. 1:28) unless he already has children: according to the School of Shammai, two sons; according to the School of Hillel, a son and a daughter, for it is written, “Male and female created He them” (Gen. 5:2).16

15 BT Jebamot 61b–66a and Code, Laws concerning Marriage 15. 16 Mishna Jebamot 6:6. Maimonides, Code, Laws concerning Marriage 15:4 follows Hillel.

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And the Talmud adduces a baraita where the minimum number of progeny is four.17 Though the law prescribes a minimum, the Sages counsel additional procreation since God “created it not a waste, He formed it to be inhabited” (Isa. 45:18). Strangely, the consensus of the Sages is that men, and not women, are charged with the obligation to procreate; only R. Johanan b. Beroka charges both. R. Johanan claims that one discharges the obligation only with children capable of procreating; if one’s children die before procreating, it has not been fulfilled. This view, disputed by R. Huna, entails that if one has a son who is a eunuch (saris), or a congenitally infertile daughter (ailonit), he has not fulfilled the precept.18 If one’s children, though deceased, have surviving children of their own, one’s grandchildren are deemed like one’s children. Fulfilment of the precept is defined in terms of perpetuating the human race, rather than by immediate continuity. R. Waldenberg links the halakhic status of infertile progeny and that of progeny born before a proselyte’s conversion.19 The Talmud reports two views on the question of the proselyte’s progeny. Resh Lakish sees the proselyte as “reborn” and hence as literally divested of his former life, and thus considers the procreative precept a new undertaking within the covenantal commitment of the convert, requiring a new set of children. R. Johanan considers it part of the procreation incumbent on all mankind (Gen. 1:28). Because he sees the proselyte’s identity as continuous, the children of his pre-Jewish life are fully accounted to him in his newly acquired Jewish identity. Maimonides maintains that meaningful continuity in identity for the proselyte via his children, as R. Johanan postulates, requires that the children convert with the parent.20 Only then is the obligation of procreation fulfilled. To explain Maimonides’ view, R. Waldenberg compares the case to that of a parent who has fathered a eunuch or infertile daughter, in that the children of the proselyte’s nonconverted children, not being covenantly-bound, are not “Jewishly” productive. R. Waldenberg extends the concept of eunuch to denote covenantal infertility. What is the ruling if one has a child so disabled that he will not be obliged to observe the precepts? Is this parent a covenantal eunuch? Regarding the mentally disabled or deaf-mute child, who, as we saw, is classically exempt from preceptobservance, R. Judah b. Israel Aszod unambiguously asserts that the commandment is fulfilled. He bases this view on the minimal covenantal obligations that others have toward them and the fact that their supervised ritual slaughter is valid, signifying that they are part of the covenant. Further, though they are exempt from precept-observance, they are capable of fathering precept-obligated children.21

17 18 19 20 21

BT Jebamot 62a. BT Jebamot 62a; Code, Laws concerning Marriage 2:4. Tzitz Eliezer 4, 15:10. Code, Laws concerning Marriage 15:6. Yehuda Yaale, part 2, #2.

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Hence here, unlike the case of the eunuch, such children discharge their parents’ obligation to procreate. R. Waldenberg cites, as support for this view, an opinion regarding conjoined twins, who are not able to marry and propagate children because modesty requires that one not have conjugal relations in the presence of others.22 Unlike the case of eunuchs, their parents are deemed to have fulfilled the obligation to procreate, having had children who are, in principle, capable of reproducing; only practical considerations prevent them from doing so.23 In support he adduces R. Shalom Mordechai b. Moses Shwadron, who cites R. Asi’s homily that “the son of David [Messiah] will not come until all the souls in the body have been exhausted.”24 R. Isaac Jacob Weiss also supports the view that parents of a mentally-retarded or deaf-mute child have fulfilled their obligation to procreate, adding that one circumcises in such a case even in violation of the Sabbath, for the same reason.25 He refutes the suggestion that the obligation to circumcise on the Sabbath applies only where the child has the potential to be bound by the precepts, but not to the blind (on the view of R. Judah), the mentally disabled, or to deaf-mutes, on the grounds that while it is incumbent on males to be circumcised, it is primarily incumbent on fathers to circumcise their sons.26 Fertility-disabled children, in that they do not fulfil their parents’ obligation to procreate, are thus denied an important affirmation of self-worth. One empathizes with the pain of the eunuch or ailonit at being denied this minimal recognition within the halakhic culture, at this affront to their personal dignity. Isaiah’s words of comfort to the eunuch take on additional meaning in this context: And let not the eunuch say, ‘I am a withered tree.’ For thus said the Lord, As for eunuchs who keep My Sabbaths, who have chosen what I desire and hold fast to My covenant, I will give them . . . a monument and a name better than sons or daughters. (Isa. 56:3–5) They are comforted not only for their inability to beget children, but also for failing to realize their parents’ reproductive aspirations. Yet perhaps the law can be reassessed, and a halakhic solution found. Just as adoptive children fulfil the precept of procreation,27 and there is no requirement that adopted children have childbearing capacity, it should be possible to argue for the same recognition here. If even one’s students can be considered one’s children, why not one’s biological children who are procreatively impaired?

22 23 24 25 26 27

Shevut Yaakov, OH #4. Tzitz Eliezer, 15 #43. BT Jebamot 62a. Minhat Yitzhak, 7 #88. Citing Hatam Sofer, YD #295 and #296. BT Sanhedrin 19b, Megila 13a.

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Before concluding, let me note that, except for the reproductively disabled, all other children are seen as discharging their parents’ obligation to procreate. It is not the capacity to participate in the religious life of the community that defines covenantal inclusion in this regard, but the mere capacity to beget children.

3. Violating the Sabbath for the disabled 3.1. Violating the Sabbath to save life It is well established that one must violate the Sabbath to save a life,28 even where the outcome is doubtful. The saving of life in violation of the Sabbath attests to the reverent attitude of the tradition toward human life, to the pre-eminence of life over almost any precept. Yet in the sources, we find debate over whether the disabled are included among those for whom the Sabbath is violated. One disputed case involved the saving of life; the other, the saving of organs, in particular, the eye. Together with this discussion we will also consider the case of circumcision of a hermaphrodite son on the eighth day, which, though not involving danger to life, nonetheless overrides the Sabbath. One rationale for “violating one Sabbath” in life-threatening situations is that the individual so saved “will be able to observe many [future] Sabbaths,” as well as other precepts.29 The dispensation applies not only to violating the Sabbath to save oneself, but also to its violation on behalf of others. To risk loss of life by avoiding Sabbath violation is considered wicked; in such a case one can be compelled to violate the Sabbath.30 Clearly, the disabled can violate the Sabbath to save themselves, since if they are duty-bound to observe the precepts, then the general rationale for violating the Sabbath to save life pertains; and if they are not, they may in any event violate the Sabbath. However, if the disabled are exempt from precept-observance, this raises the question of whether others are to desecrate the Sabbath in order to save them. Where the saving of life will not generate the future observance of precepts, is one to avoid violating the Sabbath? Given that human dignity in the halakhic context is the capacity for religious obligation, if that capacity is not likely to develop, authorization to desecrate the Sabbath is not self-evident.31 The question is raised by R. Jacob Hagiz, author of Halakhot Ketanot, regarding the mentally disabled, and answered by R. Azariah de Rossi.32 It is also raised by

28 Mishna Yoma 8:7, BT Yoma 83a–85b; also BT Sanhedrin 74a. See Code, Laws concerning the Sabbath 2:1. 29 BT Yoma 83a–85b; this is the opinion of R. Simon b. Menasia. 30 See A.S. Abraham, 1990, p. 23, note 2. In cases involving life and death, stalling to inquire about the law can be tantamount to spilling blood. 31 Jakobovits, p. 62. 32 Imrei Bina, Meor Einayim, OH, Shabat, 9, part 3.

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R. Waldenberg,33 who argues for the violation of the Sabbath on the grounds that the deaf-mute and the mentally disabled are considered fully human with respect to liability for their murder (bnei zeviha),34 and are, despite their disabilities and total exemption from precept-observance, members of the covenant (bnei kritut).35 In another responsum, he brings four arguments in favor of this view: 1 2

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They may be healed, thereby regaining obligatory status. Since their children are fully Jews, to save their lives is to facilitate the observances of this potential progeny. In other words, though they are themselves exempt from precept-observance, they are part of a chain of covenental continuity. To argue that the Sabbath must be violated to save their lives is a recognition of this continuity. Since even temporary extension of the life of someone terminally ill mandates violation of the Sabbath, regardless of any future precept observance, how much more so does saving the lives of those exempt from precept observance.36 It suffices that they are Jews; they should not be penalized for their nonobligation. The point is made regarding violation of the Sabbath for someone not observant.37

The issue is whether the preciousness of human life alone justifies the violation of the Sabbath. Is the Mishnaic teaching that “whoever saves one life is as if he had saved an entire world” of practical or merely homiletical import?38 R. Waldenberg’s view on violating the Sabbath to save lives is supported by many responsa, all of which include the lives of deaf-mutes and the mentally disabled. No distinction is made between the worth of the disabled and others. Further, for the sake of healing one with mental disability, “where necessary, the laws of the Sabbath, Yom Kippur, kashrut [the dietary laws], etc. are set aside.”39

33 Tzitz Eliezer, OH 15, Kuntres Meshivat Nefesh, 3 (on Shulhan Arukh OH 329:4). 34 Adducing Code, Laws concerning Murder and the Preservation of Life 1:1, which states, “whoever kills a human being.” Deaf-mutes and the mentally disabled surely qualify for this minimal human identity. Strangely, he quotes Maimonides as if his version of the text read, “whoever kills a Jew” and argues that surely deaf-mutes and the mentally disabled are considered Jews as well as considered children of their parents – that is, they constitute fulfilment of the precept of procreation. From this R. Azariah de Rossi argues that one can certainly violate the Sabbath to save them. 35 Responsa Kol Gadol, #76. R. Waldenberg reiterates this in Tzitz Eliezer 13:57 and 13:84, adducing the support of Mishna Brura OH 329, Biur Halakha s.v. ela lefi shaa. 36 R. Simon b. Tzemah Duran in Responsa Tashbetz 1:54. Arguing for the violation of the Sabbath even for one terminally-ill, he writes that “the saving of life, even for a short duration, is precious before the Almighty” regardless of that person’s potential to ever again observe precepts. 37 Tzitz Eliezer 8:15, Kuntres Meshivat Nefesh, 3. 38 Mishna Sanhedrin 4:5. 39 Abraham, p. 134, and see Steinberg, 1978, p. 177, n. 2.

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3.2. Violating the Sabbath to save an organ Can one extend the dispensation for violation of the Sabbath to the saving of an organ in a situation that is not life-threatening? The dysfunction of an organ is the source of disability; preventing damage to or loss of an organ may mean prevention of disability. Does the quality of life related to one’s organ mandate the same halakhic compassion as that relating to saving a life? R. Waldenberg addresses the question of Sabbath violation where there is danger to one eye,40 in light of the following talmudic discussion: Said R. Zutra b. Tobiah in the name of Rab: Should one’s eye be afflicted, it is permissible to apply medicine to it on the Sabbath. . . . One of the Sages, R. Jacob by name, remarked to him: It was made plain to me on behalf of R. Judah that even grinding it on the Sabbath and carrying it through the street are permissible.41 R. Samuel b. Judah was initially critical of this leniency, “He who acts according to R. Judah profanes the Sabbath,” but changed his mind when it affected him personally: After some time went by, he himself had a sore eye and sent to ask of R. Judah: “Is it permitted or forbidden?” R. Judah responded harshly, while explaining his “lenient” ruling: To everyone else it is permitted but to you it is forbidden. Was it on my own authority [that I permitted it?] It was on that of Mar Samuel. He was moved by a maidservant whose eye once became inflamed on the Sabbath: She cried but no one attended her and her eye hemorrhaged. On the morrow Mar Samuel went forth and propounded that if one’s eye becomes afflicted, it is permissible to dress it on the Sabbath [ordinarily forbidden], the reason being that vision is connected with mental functioning (deshuryani deeina beuvneta deliba talui ).42,43

40 Tzitz Eliezer 8:15, Kuntres Meshivat Nefesh 10. 41 BT Avoda Zara 28b. Thus, even biblically-prohibited activities are allowed for the sake of the eye. 42 While Rashi interprets the Talmud to mean that the functioning of the eye affects the heart, Tosafot ad loc. s.v. deshuryani deeina interpret the phrase as referring to mental functioning. See Code, Laws concerning the Sabbath 2:4. 43 BT Avoda Zara 28b s.v. afilu mishhak.

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Innovatively combining three arguments, R. Solomon Kluger permits someone threatened with the loss of vision in one eye to receive treatment at a hospital where he would inevitably have to eat non-kosher food.44 First, the loss of one eye due to sanverim, an eye disease, might signal impending loss of the other. Second, he brings the talmudic argument, “violate one Sabbath so that he can observe many Sabbaths.”45 Third, he introduces the ruling of R. Judah on the exemption of the blind from precept-observance. Together, these arguments lead to the conclusion that not to allow a person at risk for blindness to disregard one precept (say, observance of the dietary laws) in order to save his eye is tantamount to disregarding the injunction that future Sabbath-observance be maximized. R. Waldenberg rejects the argument, countering that to act in a way that preserves someone’s precept-obligated status is not equivalent to saving his life. However, citing Rashi’s explanation that if the eye is threatened there may be risk to the heart, he nevertheless concludes that the violation of the Sabbath is justified in order to prevent a person’s becoming disabled even in only one eye. That is, linking the health of one organ to the well-being of the entire organism allows the established dispensation to be invoked. Waldenberg asserts that broken limbs may be set on the Sabbath on the same basis, namely, that though not immediately life-threatening, if not treated, they may become life-threatening.46 Similarly, merely dislocated limbs may also be restored.47 Thus far, we have looked at dispensations based on the premise that danger to one organ constitutes a threat to life. But if the medical problem in question clearly constitutes no danger to life, even in the long term, this would not justify the saving of that organ simply to preserve its integrity. The Meiri, interpreting the talmudic text differently, suggests a different argument that sanctions violation of the Sabbath even for non-life-threatening conditions. He takes “eyesight is connected with mental functioning” to mean that the loss of the organ alone, and not any impending risk to life, suffices to justify Sabbath violation. The radical loss to one’s physical self entailed by the loss of function of even one organ is sufficiently devastating to warrant viewing the saving of an organ as equivalent to the saving of life.48 3.3. Circumcision on the Sabbath Circumcision is a significant affirmation of the covenant upon the flesh of every male Jew, and a visible sign of inclusion in the community of Israel. A precept of

44 Hokhmat Shlomo on OH 228:46 (cited in Waldenberg’s responsum). 45 BT Yoma 83b, R. Simon b. Menasia’s opinion. 46 Tzitz Eliezer 8:15, Kuntres Meshivat Nefesh 10, citing BT Shabat 148a; Code, Laws concerning the Sabbath 2:10. 47 Citing the Mishna Brura in opposition to those who do not permit this. 48 Meiri on BT Avoda Zara 28b.

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striking importance, it is a prerequisite for partaking of the paschal lamb at the Passover Seder. According to R. Ishmael, thirteen covenants were sealed on the basis of circumcision.49 Given that the premeditated violation of the Sabbath in the presence of witnesses is ordinarily a capital crime, it is of no small import that for circumcision, violation of the Sabbath by cutting, squeezing, etc.50 is permitted. The verse on which this is based: “And in the eighth day the flesh of his foreskin shall be circumcised” (Lev. 12:3), is taken to mean that circumcision must occur on the eighth day from birth, even if it is the Sabbath or even Yom Kippur.51 Where it is doubtful that the eighth day after birth is the Sabbath, as when the child was born at twilight on the previous Sabbath, the ceremony is deferred for one day.52 Is the Sabbath violated for the circumcision of a disabled baby, who will not be bound to observe even one precept? Are there any disabled persons for whom Sabbath circumcision is deferred to the ninth day, perhaps signifying that their covenantal identity is weaker than that of those for whom the violation of the Sabbath is sanctioned? When a hermaphrodite is born on the Sabbath, holding his circumcision on the following Sabbath, the eighth day, is disputed, because there are legal doubts as to his gender53: As for one who is doubtful [born prematurely] and the hermaphrodite, we may not desecrate the Sabbath on their account; but R. Judah permits it in the case of a hermaphrodite.54 From “his foreskin” (Lev. 12:3) the Talmud infers that only his, and not another’s, foreskin is circumcised on the eighth day, even if it falls on the Sabbath. But whose is not to be circumcised? That of the hermaphrodite, whose obligation to be circumcised is in doubt, as is his sexual identity. R. Judah, disagreeing, understands the inference to exclude only one whose nine-month gestation period is in doubt, but not the hermaphrodite.55 The Talmud sides with those who exclude the hermaphrodite, and Maimonides concurs,56 as do the major authorities other than Rabbenu Hananel, who rules according to R. Judah.57

49 On the importance of this precept see Mishna Nedarim 3:11, BT Nedarim 31a–32a, and Code, Laws concerning Circumcision 3:9. 50 See Mishna Shabat 19:5 and BT Shabat 133a. 51 BT Shabat 131b–132b. 52 Mishna Shabat 19:5, BT Shabat 134b. 53 Mishna Bekhorot 6:12 suggests three views on his sexual identity: a blemished male; of doubtful gender; a third gender, neither male nor female. 54 Mishna Shabat 19:3. 55 BT Shabat 134b–135a. 56 Code, Laws concerning Circumcision 1:11. 57 As reported in Hagahot Maimoniot ad loc.

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The same kind of question is raised in relation to the blind and to the mentally disabled, for the same reason.58 Abraham notes that in the case of the mentally disabled this is purely theoretical, because it takes several months to determine if the child is so disabled. Regarding the blind, it is also theoretical, since most follow R. Meir and not R. Judah. That is, their circumcision can indeed take place on the Sabbath. The plight of the hermaphrodite, like that of the eunuch with respect to procreation, should inspire the sensitive halakhist to seek a creative solution. Generally, readiness to violate the Sabbath betokens inclusion within the covenantal community. Permitting violation for the disabled is an indication of legal recognition, although the fact that the issue is debated at all points to a certain ambivalence about the halakhic personhood of the disabled.

4. The obligation to educate The centrality of education to Jewish life cannot be exaggerated. Two distinct elements regarding the teaching of Torah are encompassed by the injunction to teach the child diligently (Deut. 6:7): the biblical conception, on which teaching is mandated for its own sake, and not to facilitate precept-observance, and a Rabbinic conception, which views study instrumentally. Maimonides’ “Laws concerning the Study of the Torah,” describes a society, focused on the Torah, for whom the scholar is a hero to be emulated.59 Study is considered equivalent to all the precepts and a prerequisite for their proper implementation.60 It molds character and morality.61 Study is to continue from childhood to old-age. Maimonides stresses the virtue of perpetual study, even by those with disabilities: Every Israelite is under an obligation to study Torah, whether he is poor or rich, in sound health or ailing, in the vigor of youth or very old and feeble. . . . Among the great Sages of Israel, some were hewers of wood, some, drawers of water, while others were blind. Nevertheless, they devoted themselves by day and by night to the study of the Torah. They are included among the transmitters of the tradition in the direct line of Moses.62 Participation in its most prized activity, study of the Torah, is of great moment in a culture that so values the cognitive dimension. The sources discuss pedagogic issues explicitly. Developmental level is taken into account in recommendations

58 See Sefer Male Haroim, “Suma” 10, on the blind, and Auerbach on deaf-mutes and the mentallydisabled, cited in Nishmat Avraham YD, p. 159. 59 Code, Laws concerning the Study of the Torah 3:1. The sanctity of the study hall surpasses that of the synagogue, ibid. 4:9. 60 Mishna Peia 1:1; BT Kidushin 40b. 61 Mishna Avot 2:5: “The unlearned cannot be pious.” 62 Code, Laws concerning the Study of the Torah 1:8–9.

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for the regimen of instruction.63 Much thought is given to motivational techniques and methods of enhancing the student’s focus.64 The sources manifest awareness of discipline problems and acknowledge that the educational process cannot be isolated from the needs of the child’s personality. A child with special needs is not dismissed from the class, but rehabilitated according to his individual condition. Maimonides states: Torah should be taught only to a worthy pupil whose conduct is exemplary or whose disposition is forthright.65 However, one who walks in a way that is not good should first be rehabilitated, trained in the right way and examined [as to his sincerity];66 then he is admitted into the study hall and given instruction.67 In consideration of individual differences the teacher is admonished “not to be angry with them or fall into a rage but to repeat the lesson again and again till they have grasped the full meaning of the law he is expounding.”68 Since students are not all at the same intellectual level, the teacher must teach the lad “according to his way” (Prov. 22:6). Conversely, the student need not be embarrassed by his own slower rate of learning and should not say ‘I understand’ when he has not understood, but should ask again and again. And if the master is angry with him and rails at him, he should say, ‘Master, it is Torah. I need to learn, and my intellectual capacities are deficient (daati ketzara).’69 Education is the province of the family, school, and community. Universal elementary education through community-run schooling was ordained by Joshua b. Gamla at the end of the Second Commonwealth, c. 65 CE,70 to ensure that all children, even those whose parents did not carry out their duty to teach their children, would be educated. It was further mandated that resources for this be found, or available resources allocated.71 The Talmud assigns the primary burden for education to the father, who is “bound in respect of his son, to circumcise,

63 Mishna Avot 5:21. 64 E.g. BT Baba Batra 21a suggests the pairing of a more with a less attentive student; BT Nida 45a suggests asking tricky questions to sharpen the student’s discernment. 65 Based on BT Taanit 7a; BT Makot 10a. 66 Based on BT Berakhot 28a. 67 Code, Laws concerning the Study of the Torah 4:1. 68 Ibid., 4:4. 69 Ibid., 4:5. 70 BT Baba Batra 21b; Code, Laws concerning the Study of the Torah 2:1. 71 See Rema on Shulhan Arukh HM 163:3, and sources cited by Bleich, 1983, p. 309.

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redeem, teach him Torah, take a wife for him, and teach him a craft. Some say, to teach him to swim too.”72 Besides instructing the child in formal Torah values, the law mandates that his social integration and self-sufficiency be fostered by training him in a craft.73 Inculcation of independence is evident in a number of talmudic sources. One example is R. Akiba’s teaching that parents are obligated to teach their sons to swim.74 Some commentators explain this as referring to sailing and education in yishuv hamedina, being cultivated.75 The child is not instructed to avoid water, to circumvent the danger, for avoiding water is like avoiding reality. Rashi notes that water covers most of the world’s surface and hence one must be able to navigate it.76

4.1. Education of the mentally impaired Is the education of the disabled considered equally compelling? Is the community bound to educate disabled children according to their level of comprehension, to maximize their limited capacities, to enhance their autonomy? Since education aims at fostering participation in the halakhic life of the community, what of those who are exempt? The cost of educating disabled children is significantly higher than that of educating able-bodied children. Extra time, special facilities and materials, trained staff and technologically advanced equipment are necessary.77 Research must be carried out to find the optimal methods of teaching these children. Even if the parent is not obliged to provide “instrumental” Torah education to a child who may never be obligated in the precepts, he must still provide him – according to his abilities – with Torah education, which is inherently valuable. And even when development is permanently arrested and education cannot lead to observance, “maximalization of educational opportunities within a Torahoriented framework serves to promote the social integration of such children with their peers within the observant Jewish community. This in turn can only lead to greater happiness and emotional stability.”78

72 BT Kidushin 29a. These obligations are delegated to the father regarding his son. The Meiri (Bet Habehira on BT Kidushin 29a) explains that only one who is himself obliged should be obligated regarding others. Thus the mother, who is not obliged to be circumcised, redeemed (if first born), to study Torah, or, even, formally, to procreate (BT Jebamot 65b), is relieved of the duty to see that her son discharges his obligation to observe these precepts; see C. Safrai, 1991. 73 BT Kidushin 30b. There is disagreement on whether it must be a craft, as R. Judah argues, or business is acceptable as well, as Hezekiah contends. 74 BT Kidushin 31a. 75 Tosafot on Kidushin ad loc.; Mekhilta de-Rabbi Ishmael on Bo 18 (Lauterbach p. 73), R. Judah the Prince’s view. 76 See Rashi on BT Kidushin 29b s.v. af. 77 This is emphasized by R. Moses Feinstein in his responsum in Am Hatorah, see below. 78 Bleich, 1983, p. 300 (in “Torah Education of the Mentally Retarded”, pp. 300–10).

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Maimonides explains that It rests on every scholar in Israel to teach all disciples, even if they are not his children, as it is said, And thou shalt teach them diligently unto thy children (Deut. 6:7). On traditional authority, the term “thy children” includes disciples, for disciples too are called children.79 Each Jew must take responsibility for the education of every child, while giving priority to that of his own children and grandchildren.80

4.2. Distinction between shote and peti R. Moses Feinstein distinguishes between the concepts of shote, here translated “mentally disabled,” and peti beyoter, or simply peti, as he refers to this category in his remarks.81 Unlike one who is mentally disabled (shote), given special education, the abilities of the peti can be enhanced. As he understands the terms, both designate mental impairments, the former describing one whose “imaginative” (mental) capabilities are distorted (toe badimyonot), though not necessarily his intellectual capacity, and who may also manifest acute episodes of disorder. The term peti he describes as denoting one whose mental faculties are diminished, that is, who is mentally retarded (daato kelishta). While he seems childlike, his mental functioning is constant, unlike that of one who is mentally disabled. In considering whether there is a halakhic obligation to educate the mentally retarded to maximize their potential, though they will remain at an infantile level of mental functioning even after the best efforts, he ponders whether to compare them to the mentally disabled, who are not obligated to observe the precepts, or to those who are “compulsive” (anusim), who, though generally obliged to observe the precepts, are excused in any instance where their actions are beyond their control.82

79 Code, Laws concerning the Study of the Torah 1:2, based on BT Ketubot 28a and Kidushin 30a. 80 Ibid. Maimonides explains that the precept specifically mentions “thy children and thy children’s children” (Deut. 4:9) only to set priorities. 81 Responsum in Am Hatora (1982). Goldberg examines the classification of mental disabilities. The term “peti,” generally connoting foolishness or cephalic deformity, is found in a wide range of biblical and Rabbinic sources, see, e.g., Proverbs 14:15, BT Berakhot 58b. The term “peti beyoter,” used in the Code, Laws concerning Evidence 9:10, comes under the broader classification of shote. It is attributed by Kesef Mishne to the Itur (under the letter “kuf ”), where it is traced to one of Alfasi’s responsa; the Radbaz attributes it to the writings of the Geonim. Migdal Oz argues that Maimonides’ terminology comes from BT Rosh Hashana 28a, which deals with cyclical insanity. 82 BT Nedarim 27a. Divine law exempts those unavoidably prevented from conforming with the law. The biblical source is Deut. 22:26, regarding the raped betrothed maiden. Code, Laws concerning the Sanhedrin 7:10, Laws concerning Sales 11:13.

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In an innovative move, he distinguishes two levels of peti – the first, that of the child who will attain the mental age of a six-year-old or thereabouts, and can improve somewhat through intensive training. Such an individual he considers to be fundamentally bound to observe the precepts upon coming of age, but in practice, exempted on the grounds of compulsion. The second type of peti is the individual whose functioning will always remain at the level of an infant. Such an individual is tantamount to one who is mentally disabled (shote) and hence categorically exempt from precept observance. R. Feinstein reiterates the dispensation to enrol such children, in the absence of a Jewish alternative, in any appropriate institution.83 Regarding those in the first category of peti, he declares that one may not do so, but is obligated to provide a proper Jewish learning environment suitable for their needs, as they have a chance of improving their abilities somewhat, and are obligated to observe the precepts when they come of age. Hence it is incumbent upon their parents to educate them.84 To meet their special needs, special education teachers must be employed. To the extent that it does so for every able-bodied child, the community must bear the cost. Charitable donations may also be used to provide this service. This does not relieve parents of their obligations in this regard. R. Feinstein suggests that even the synagogue must be accommodating, facilitating the participation of these children to the extent of their capability: perhaps merely being present in the synagogue, and kissing the Torah. 4.3. Other views R. Ezekiel Landau85 cites the Maharil’s position that while actually exempt from precept-observance, deaf-mutes and the mentally disabled are nonetheless of covenantal status (bnei mitzva ninhu), and adults are enjoined to train them (presumably in precept-observance).86 This explains why supervised ritual slaughter by a deaf-mute or one who is mentally disabled is halakhically valid, unlike that of the Gentile, who is not part of the covenant. R. Landau considers different levels of educational obligation with respect to minors, citing R. Solomon b. Adret’s distinction between training in restraint from engaging in activities that are in violation of negative precepts, which the parent is not obliged to provide, and education in the observance of positive precepts such as prayer, which the parent is obliged to provide. Though in general

83 See Igrot Moshe, OH 2:88, discussed below. 84 Bar-Ilan, p. 111, disagrees with R. Feinstein’s views, positing a test of comprehending the essentials of faith as a criterion of the potential of the peti to be bound by precept-observance. 85 See Noda Biyehuda, 2nd ed., OH #1, on parental responsibilities regarding the religious education of minors. 86 Maharil, responsum #223.

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the transgression of negative precepts is considered a more severe violation than non-compliance with positive precepts,87 from the perspective of the educational process of child rearing, this is not the case. While one is not duty-bound to intervene if a minor violates negative precepts,88 one is duty-bound to gradually introduce him to the observance of positive precepts. R. Landau acknowledges the opposed view of R. Joseph Teomim, who does not see the educational process as mandating a reversal of the usual valuation of the precepts. For him, in any event violation of a negative precept is more serious than failure to observe a positive precept. He considers the minor completely exempt from the observance of positive precepts while basically obliged with regard to negative ones, unless his mental incapacity precludes his actually undertaking this.89 R. Landau also distinguishes between not intervening when a minor transgresses a negative precept, and being an accessory to the transgression; an example would be the distinction between not taking away a forbidden food from a minor, and actively providing him with that food. This distinction, like that between training with regard to refraining from transgressing negative commands and training in observance of positive commands, has been applied in discussing the degree to which there is an obligation to provide elementary education for mentally disabled persons.90 The extent of the obligation to train minors in the observance of positive precepts according to R. Landau is discussed by R. Moses Feinstein, in determining the degree to which this training must use authentic ritual objects. For example, in training a child to wave the lulav, must an unblemished, that is, halakhically valid, palm-branch be used, or does a substandard one suffice?91 R. Moses Feinstein upholds the strict view, requiring that valid ritual objects be used as teaching tools, though they are more expensive. Of all the authorities cited by R. Moses Feinstein, only the Raban upholds the lenient view regarding the lulav.92 This has consequences for disabled minors who may, as adults, be exempt, but while yet minors must be educated, regardless of their dim prospects for preceptobligation. If an exact replication of the adult scenario must be produced for the minor, then only a minor who in every respect other than his age is like an adult, need be educated. If, however, the education of a minor need not replicate

87 Shev veal taase shani “[non-observance by] omission is different,” says the Talmud in BT Jebamot 90a. Rashi s.v. shev explains that through omission, no precepts are being uprooted. Thus, for example, not eating the paschal meal on Passover (a positive obligation) cannot be compared to the deliberate desecration of tithed produce by a non-priest (a negative precept). 88 Code, Laws concerning the Uncleanness of Foodstuffs 17:27, based on BT Jebamot 114a. 89 Pri Megadim, Introduction to Shulhan Arukh OH 2:3. 90 The analogy between one who is mentally disabled and a minor is suggested by Bleich, 1983, p. 294. 91 Igrot Moshe, OH 3:95. 92 R. Ovadia Yosef (Yabia Omer 4, EH 4) adduces additional supporters of the Raban’s view, one being the Hafetz Hayim (Mishna Brura, OH 658:28).

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halakhic standards precisely, then even a minor, who for reasons other than his minority – for example, mental disability – will be exempt, must still be educated.93 The same applies to the pilgrimage commandment, “being seen,” on which R. Feinstein’s discussion centers. On the first view, there is no parental obligation to take blind or disabled sons to Jerusalem in observance of this commandment, because these disabled sons will be exempt as adults. According to the second view, however, assert the Tosafot, it is incumbent upon the father to take them, so that as adults they will know about the pilgrimage. Though, as adults, they will likely be exempt, their educational experiences ought not be restricted due to this prognosis. 4.4. Special education and religious observance Can mentally-disabled children, categorically exempted from precept observance on the grounds that they are mentally disabled, be institutionalized in special schools to provide them with basic skills, unrelated to religious observance? What about the probability that in these non-Jewish or non-observant settings they will inevitably eat forbidden (i.e., non-kosher) foods, not observe the Sabbath or holidays, and receive no instruction in religion? R. Moses Schreiber ruled on the case of a seven-year-old mentally-impaired orphan, whom doctors recommended be sent to a school in Vienna to render him self-reliant.94 In his responsum, he is inclined toward leniency, relying on Pri Megadim, on the grounds that without such special education, the child would never achieve the level of maturity required for any religious obligation. He stipulates one proviso: the degree of permissiveness, in overlooking his transgressions, may not exceed that allowed in the case of any minor, who is, similarly, not obligated. While not requiring intervention to prevent the minor from such transgressions as eating prohibited foods, he warns against active encouragement.95 R. Moses Schreiber rejects the suggestion of R. Israel Isserlein that this concern only applies in the case of a minor who, as an adult, would be obligated to observe the precepts, and the rationale for not encouraging transgression is to prevent him from becoming accustomed to foods that will be forbidden to him as an adult.96 He insists that it applies equally to the shote, who will never be obligated to observe the precepts. The reason, says R. Schreiber, is not merely to ensure that the minor

93 Abbaye’s opinion in BT Hagiga 6a: “Where, as an adult, he will be scripturally obligated, as a minor, we must educate him, on Rabbinic authority. Where, as an adult, he will be scripturally exempt, as a minor he is exempt [we need not educate him].” The dilemma is explained in Tosafot ad loc. s.v. behiger. 94 Hatam Sofer 1, OH #83. 95 Literally, adults “must not give [it to] them with their own hands,” BT Jebamot 114a, discussed above. 96 Pesakim Uketavim #62.

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or shote does not become accustomed to habits he would not be allowed as an adult – which does not apply to a shote – but is an extension of the injunction against providing such foods to any Jew. But is not the enrolment of this boy in such an institution in some sense actively involving him in transgression? R. Schreiber maintains that to facilitate his reaching a level that renders him even minimally obligated, it is even permitted to give him forbidden foods. He argues that since, for the sake of fulfilling another precept, an adult is without a doubt permitted to provide forbidden foods to a minor or a shote, it is certainly justifiable here, since more than one precept is at stake. However, he does not accept the view that enrolment in a school is tantamount to actively supplying the child with prohibited foods. The one enrolling the child does not instruct the staff to supply such foods nor does he himself in a direct way bring anything forbidden to the child. Nevertheless he limits this dispensation to cases where the institution may elevate someone from the level of non-obligation to the level of obligation. It does not apply to those already at the threshold of halakhic obligation, whose tenure at the institution will only ameliorate their functioning. R. Moses Schreiber forbids actively introducing such a person to an environment where he will transgress the dietary laws.97 R. Schreiber further rejects the argument that human dignity overrides even biblical prohibitions98 on the grounds that a shote is deemed incapable of experiencing humiliation.99 Alleviation of the family’s humiliation at having to maintain a shote in the family does not suffice. In his concluding remarks, R. Schreiber severely limits his dispensation. It is valid only until the age of majority, thirteen years and one day for a boy, twelve years and a day for a girl, after which the child must be removed from the institution. Even after granting this limited dispensation, he nevertheless expresses the preference that this course of action not be initiated.100 His concern has to do with his beliefs about the effects of consumption of forbidden foods: he asserts that because they “make the heart stupid and cause a vile disposition,” it is “better the child remain mentally disabled all his life than be for a single moment wicked in the eyes of the Lord.”101

097 R. Moses Feinstein rules similarly for mentally retarded children who function at the level of a four- to six-year-old, considering them fundamentally obligated for precept observance though exempt due to compulsion, Igrot Moshe, OH 2:88. 098 As claimed by the Tosafot on BT Sheviit 30b s.v. aval, in instances where there is great humiliation. 099 Citing BT Baba Kama 86b. This is open to empirical refutation. 100 Bleich 1983, p. 297, also understands R. Schreiber this way. 101 Hatam Sofer 1, OH #83, citing the statement of Akabya b. Mehalalel: “better to be called mentally incapacitated (shote) all my life than for one moment to be evil before God” (Mishna Eduyot 5:6). R. Moses Screiber is, however, ignoring the fact that in this context the term is clearly intended metaphorically.

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R. Schreiber’s halakhic conclusions are debatable.102 Indeed, they are rejected in a responsum by R. Moses Feinstein on an eleven-year-old mentally retarded girl’s placement by her father in a Gentile custodial institution where her observance of certain precepts, it can be assumed, will be infringed. The father suffers from heart disease, to the point where continuing to care for her could endanger his life. R. Moses Feinstein disagrees with R. Moses Schreiber’s view on the permissible duration of institutionalization.103 He rejects the latter’s opinion that after coming of age, the individual in question should not be fed non-kosher food. It is, he maintains, permissible, on the grounds that the girl has been deemed incurable, and one does not rely on miracles, in this case, future healing, in rendering a decision. Even were she to be cured, the Almighty, who healed her mental ailment, would also heal her of her “contamination” (i.e., the effects of the forbidden food). In addition, since the danger to the father’s life takes precedence over whatever obligation there might be to educate the daughter, she may be institutionalized. Physicians had also recommended that she be sterilized to prevent the dangers to her health attendant upon pregnancy, since others at the institution might take advantage of her sexually. He argues that whether sterilization is scripturally proscribed, and therefore permissible only to save a life, or Rabbinically proscribed, and therefore permitted under certain other circumstances, there is a risk her sexual integrity will be violated, and a dispensation can be given on the grounds that it is better to violate a small prohibition than to endanger her. As this case illustrates, the halakha evinces sensitivity to differences in the abilities, needs, and levels of functioning of disabled children, reflected in the corresponding obligations with respect to their education. Yet the reluctance to allow someone with the mental age of a six-year old to take advantage of educational opportunities offered by a non-Jewish institution seems unduly harsh. So too R. Schreiber’s ruling against permitting one who is unequivocally precept-bound to benefit from amelioration of his condition by institutionalization. But we ought to consider the implication of these seemingly harsh rulings with respect to the responsibility of the Jewish community. Feinstein explicitly imposes upon the

102 R. Simha Bunim Sofer, Shevet Sofer, EH #21 explains that the case on which his grandfather, the Hatam Sofer, ruled did not actually involve a mentally disabled person. It concerned a child of borderline intelligence whose obligation to observe the precepts would become actual at the age of thirteen (cited in Bleich, 1983, p. 298). If so, then in the case of one truly mentally disabled, the Hatam Sofer, I would argue, would have agreed to have him placed, without any age limit, in an institution, even with the anticipated violations of kashrut, etc. Further, in this particular case, because the child in question is not defined as a shote, it is not clear to me why R. Moses Schreiber considers human dignity irrelevant. He emphasizes that his dispensation to institutionalize does not extend to those who fail to meet the defining criteria for mental disability, for being categorized as shote. That is, it does not apply to borderline cases. One might ask why the Tosafot’s claim that the prevention of severe humiliation is grounds for disregarding even biblical precepts should not be applied in such cases. 103 Igrot Moshe 2:88.

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community the responsibility to provide a proper learning environment. By ensuring that the needed facilities are in place in the community, the children in question can be nurtured and taught to the fullest extent possible.

5. Sources that seem dismissive of the disabled We now examine two points on which the law appears to deny the disabled elemental rights. The first is that of the legally-sanctioned “exploitation” of certain disabled persons, to facilitate the precept-observance of others, specifically, exploiting a disabled person’s “exempt” status to avoid an inconvenience to an able-bodied person that would be incurred by his Sabbath-observance. The second, the disqualification of the disabled from the defunct “ordeal of bitter waters,” is a perplexing instance of apparently arbitrary disregard for the rights of the disabled. 5.1. Avoiding violation of the laws of the Sabbath Handling money and carrying, are forbidden on the Sabbath.104 Taking advantage of the fact that the disabled are not obligated to observe the precepts, the law mandates that an able-bodied person who has money in his possession and is unable to safely store it before the Sabbath, may, to avoid transgression, deposit it with a deaf-mute, one who is mentally disabled, or a minor, all of whom are exempt from precept-observance.105 The Talmud assesses the possibility of abandoning the money, deeming it impractical. The fact of human nature is that possessiveness is in most people so strong that they cannot live up to the ideal of putting the holiness of the Sabbath before their own possessions. To avoid desecrating the Sabbath, the Talmud allows one to entrust his purse to a Gentile, who is not bound by the laws of Sabbath-observance.106 The Gentile is technically considered an independent agent, not acting at the Jew’s behest, hence, this solution is best. If there is no appropriate individual nearby, he should place the purse on an animal’s back, taking care not to guide the animal directly, so as not to violate the injunction against making one’s animal work (Exod. 20:10). This is to be preferred to entrusting it to a deaf-mute, mentally disabled person, or minor, because though the latter are exempt, the Talmud emphasizes that “these are human beings, those [animals] are not.” Rashi explains that using animals in such a situation averts the danger that others, not realizing that the individual to whom the money has been entrusted is disabled, or that the disabled are exempt, will be misled into thinking it permissible

104 For the prohibition against carrying in the public domain on the Sabbath, see Code, Laws concerning the Sabbath 14, 15, 18; on handling money, see Shulhan Arukh OH 310:7. 105 BT Shabat 153a. 106 Mishna Shabat 24:1.

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to carry money on the Sabbath.107 Rashi’s concern is to avoid misleading the able-bodied, who are precept-obliged; he is indifferent to the possible value of voluntary observance of the Sabbath by the disabled. Rabbenu Hananel explains the matter as one of a hierarchy of obligation. Where a solution involving a Sabbath violation cannot be avoided, one should seek the solution closest to the bottom of the scale.108 Intelligence is used to establish the hierarchy for choosing between a deaf-mute, one who is mentally disabled, and a minor. The mentally-disabled person is considered of lesser halakhic status than the other two, while the preferred choice between the minor and the deaf-mute is debated. Some consider the minor preferable, not because he is of lesser mental ability, but because the action of the deaf-mute adult, it is conjectured, may mislead observers into thinking that the activity is permitted, since this disability is not immediately obvious, and from afar, the deaf-mute appears like any other adult. Others consider the deaf-mute preferable, because the minor will outgrow his disqualification.109 One might ask: how can taking advantage of a disabled individual be justified? Does it not constitute “mocking the wretched” (loeg larash)?110 Where the Sabbath is violated, by dispensation, to save the life of a sick or disabled person, an ablebodied person is allowed to benefit from the desecration. For example, if lights are turned on to treat someone on the Sabbath, a healthy person can use that light.111 Thus, in such a case, one who is able-bodied can use, or derive benefit from, another’s physical state. However, the violation in such a case is intended to serve the ill one, whereas in our case, it is intended to serve the able-bodied. The Talmud recommends this solution only due to its assessment of the limits of what can be imposed upon the individual in terms of financial loss.112 Other laws also suggest guidelines for the realities of human nature, with the justification that “the Torah addresses the evil impulse.” This dictum is applied by Rab to the law concerning the taking of a beautiful woman during war.113 It is applied by Abarbanel in explaining the reluctant divine concession allowing monarchy.114 The Sages must either condone violation of the Sabbath, as a concession to man’s innate possessiveness,115 or find a solution that preserves the inviolability of the Sabbath, perhaps at the cost of ethical sensitivity.

107 Rashi ad loc. s.v. veyesh. 108 Rabbenu Hananel ad loc.: uleolam lagarua shebahem noten “always giving it to the one with the lower status.” 109 BT Shabat 153b. 110 BT Berakhot 18a, Sota 43b, Menahot 41a; JT Berakhot 2:3 (14b), Taanit 4:5 (21b). 111 Jakobovits discusses examples and the permissible limits of such use, pp. 71ff. 112 Exod. 16:22–7, describing the desecration of the Sabbath to gather manna, illustrates the dilemma. 113 Deut. 21:10–14; BT Kidushin 21b. 114 Deut. 17:14–20; Abarbanel ad loc. 115 The Talmud goes on to examine the limits of this possessiveness, arguing that in the case of found articles, the solutions suggested are not available, since the finders are not yet taken by the objects, and therefore capable of resisting their allure; see BT Shabat 153a.

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One might argue that those being used are not necessarily capable of understanding that they are being taken advantage of, but moral integrity precludes taking advantage of another’s ignorance, even where no further damage is incurred. The biblical injunction against placing a stumbling block before the blind (Lev. 19:14) is explained as referring to one who is unaware of a matter, the instruction being not to exploit this ignorance. One could argue that this refers only to cases where the person so exploited suffers a concrete loss. I would argue, however, that being used itself constitutes a loss, even where there is no halakhic violation. It might be suggested that the case can be reframed in a different and more favorable light. The covenantal community of which the disabled are a part works through interdependence (arevut); hence all sectors can contribute, in their own ways, to advancing the joint interest of adherence to divine law. On this reasoning, rather than exemplifying exploitation of the disabled, the case we have examined is one of matter-of-fact inclusion and integration of the disabled into the pragmatics of halakhic life. Yet this solution seems sophistical, and in my view, subverts rather than advances the halakha. Manipulating one who is disabled without his knowledge is exploitation, not inclusion. I find it preferable to concede the tradition’s shortcomings, and seek to redress such slights. 5.2. The ordeal of jealousy A wife’s unfaithfulness to her husband is grounds for divorce and capital punishment according to biblical law. If a woman is suspected of adultery, her husband is empowered to bring her before the priest for a test, an ordeal of jealousy. It involves her drinking a potion of water mixed with earth from the floor of the Tabernacle and dissolved writing from the parchment of adjuration (Num. 5:23) in which the name of the Lord appears, indicative of the gravity of this ordeal.116 If she is lying, then the water that causeth the curse shall enter into her and become bitter. . . . And if the woman be not defiled, but be clean; then she shall be cleared, and shall conceive seed. (Num. 5:27–28) If guilty of what her husband suspects, a woman who drinks the potion is cursed with horrible suffering. Whether subjecting one’s wife to this ordeal is optional or mandatory is debated by the Sages.117 One view denies it is a viable

116 Mishna Yoma 3:10; Tosefta Yoma 2:3; BT Yoma 37b. 117 BT Sota 3a; Maimonides rules that it is obligatory, Code, Laws concerning the Wayward Woman 4:18.

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option. The process may not be initiated merely on the basis of the husband’s subjective feelings of jealousy, but only if there are objective grounds for suspicion. The husband must have warned his wife in the presence of witnesses to avoid the company of the specific man whom he suspects. It is also required that the wife had secluded herself with the suspect; and that there be insufficient evidence to conclusively point to adultery.118 What appears to be arbitrary empowerment of the jealous husband, the Sages perceive as a sober and objective process for dealing with a marital crisis. Where the ordeal, though warranted, cannot be implemented for reasons pertaining to the wife, for example, if the wife does not want to take the oath, or in the case of disqualification due to disability, the husband must divorce his wife and is released from the usual economic liabilities of the marriage contract (ketuba).119 In such a case, though she avoids the ordeal, the wife is subject to financial penalty. In cases where the reason for not implementing the ordeal pertains to the husband, for example, if he does not want to go through with it, though the wife is willing, she is granted a divorce and receives the ketuba payment. Reluctance to blame only the wife for the breakdown of the marriage is evidenced by the fact that the talmudic discussion opens with a midrash to the effect that one gets the spouse he deserves.120 If he comes to suspect his wife of infidelity, the spouse should look to himself. The ordeal was, in fact, soon abolished: “Since promiscuous individuals proliferated, the bitter waters ceased.”121 Under the circumstances in question, the couple must divorce without the wife’s receiving the usual payment (ketuba).122 As noted, one reason for exclusion from the ordeal is disability of either spouse, inferred from a redundant biblical phrase: Our Sages taught, “When a wife, being under her husband, goeth aside” (Num. 5:29) – this is to compare a husband with a wife and a wife with a husband.123 For what practical purpose? R. Sheshet said, [to exclude the blind]: Just as he does not make her drink if he is blind, as it is written, “And it be hid from the eyes of her husband,” (Num. 5:13) so she does not drink if she is blind. R. Ashi said [to exclude the crippled]: Just as a woman who is lame or armless does not drink, for it is written, “And the priest shall set the woman before the Lord . . . and put the

118 119 120 121 122 123

Mishna Sota 1:1. Mishna Sota 4:1–3; Code, Laws concerning the Wayward Woman 2:1. “One is matched with a wife according to his deeds,” BT Sota 2a. Mishna Sota 9:9; Tosefta Sota 14:1–2; BT Sota 47b. See C. Safrai, p. 210. Kesef Mishne and Hagahot Maimoniot on Code, Laws concerning the Wayward Woman 1:1. The phrase is tahat isha, “being under [the authority of ] her husband.” Maimonides understands it as suggesting that she must be “whole as he is,” or he “whole as she is,” Code, Laws concerning the Wayward Woman 2:3.

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meal-offering . . . in her hands,” (Num. 5:18) so he does not make her drink if he is lame or armless. Mar, son of R. Ashi said, [to exclude the mute]: Just as a mute woman does not drink, for it is written “and the woman shall say: Amen, Amen,” (Num. 5:22) so he does not make her drink if he is mute.124 A visually, orthopedically or speech-disabled spouse is excluded from the ordeal of jealousy. Exclusion of the blind may be due to uncertainty over whether the husband’s jealousy stems from objective facts regarding her behavior or from his own insecurity due to his limited perception. However, as a result of the blind husband’s exclusion, his wife suffers the non-payment of the marriage contract, though not the humiliation and pain of the ordeal. The financial consequences of the marital breakdown, to the extent that they appear to be objectively traceable to her, still obtain. The same holds true for disqualification due to other disabilities, though the justifications vary. But this does not explain the exclusion in the case of a wife’s disability. Even were it arguable that a blind wife is excused from subjection to this ordeal because she is not fully sensitive to the repercussions of her actions in terms of feeding her husband’s suspicions, why would she be penalized for having a disability? Perhaps this is an expression of an arbitrary divine decree, as is the law of the red heifer. Yet the ordeal itself is often construed as a divine marital reconciliation process to allay suspicions and reunite the couple. R. Meir taught that God so cares for marital tranquillity that to further it, His name may be “erased” by dissolving the writing on the parchment, ordinarily a serious infraction.125 Those unable to “stand,” incapable of holding what the priest puts in their hands, or unable to pronounce, “amen, amen,” are excluded from the ordeal for ritualistic considerations. The Jerusalem Talmud records a different tradition: in the case of an armless woman, two priests assist her to hold the meal offering.126 Strangely, a eunuch who suspects his wife is not excluded.127 In adjuring the woman, the priest refers to the suspicion that a man other than her husband has “lain” with her (Num. 5:20). This should only apply where the husband is capable

124 BT Sota 27a–b; also in Numbers Rabbah 9:42. 125 Numbers Rabbah 9:20. On the holiness of the divine name, see Deut. 12:3–4; BT Makot 22a. 126 JT Sota 3:1. Mare Panim ad loc. s.v. sota gidemet (see also Shirei Korban ad loc.) notes the inconsistency of the JT in disqualifying the blind wife, while including the lame. One could, however, plausibly distinguish between those of incomplete perception, and those whose perceptual faculties are intact. Maimonides disqualifies the lame wife, Code, Laws concerning the Wayward Woman 2:2. 127 Mishna Sota 4:4; BT Sota 26a. Inclusion of the eunuch is inferred from the superfluous disjunction in the verse “or when the spirit of jealousy cometh upon a man” (Num. 5:30, interpreted in Numbers Rabbah 9:27).

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of having intercourse with her, excluding the eunuch.128 Nevertheless, incapability to procreate is not the critical issue129; the husband’s male gender suffices. Rashi limits inclusion to congenital eunuchs, and excludes those who are castrated by human intervention, on the grounds that a union with the latter is illicit,130 hence the jealousy of such a husband deserves no support – it would be akin to sanctioning the ordeal for an incestuous husband. Maimonides includes both natural and surgical eunuchs among those eligible to initiate the ordeal.131 The inclusion of the eunuch suggests that the capacity for jealousy is thought to remain intact despite genital disability. That is, disability is not perceived as inhibiting human nature. On another point, inclusion of the eunuch is problematic. If it is assumed that those with disabilities may be more susceptible to exaggerated suspicion, this tendency could be expected to be more pronounced where the disability relates directly to sexual identity. Maimonides, without using the word eunuch, includes, among those whose seclusion with the wife may warrant the ordeal, the “impotent male (shahuf ), one unable to have an erection and beget children.”132 It is not clear if he equates the impotent male with the eunuch. The Sages disagree as to whether a sterile woman (ailonit) is included among women subject to the ordeal. Such a sterile woman is considered congenitally disabled, in contrast to “one not capable of bearing children” (sheeina reuya leyaled ) in whom the barrenness is induced artificially. On one view she is included because her condition does not affect her husband’s capacity for jealousy. On another view, she is excluded, for Scripture promises conception to the wife who emerges from the ordeal innocent, an impossibility for the sterile woman: R. Simon b. Eleazar says: A sterile woman does not drink and does not receive the marriage-settlement, as it is said, “Then she shall be cleared and shall conceive seed” (Num. 5:28) – one whose way is to conceive seed, excluding one whose way is not to conceive seed.133

128 JT Sota 4:4 emphasizes the word “lain” (shekhavto) (Num. 5:20), his “[merely] lying down [with her],” though in the verse it is clear that the term refers to another man’s having placed his semen (shikhvat zera) within her (Num. 5:13). The eunuch is excluded since he cannot generate seed, according to a variant cited in Korban Haeida ad loc. s.v. vekhi nitmeit. 129 BT Sota 26a, Rashi ad loc. s.v. ka mashma lan. 130 Rashi ad loc.; see Deut. 23:2. 131 Code, Laws concerning the Wayward Woman 2:6. Kesef Mishne ad loc. tries to reconcile Rashi’s view with that of Maimonides, suggesting that Rashi’s exclusion, though worded in terms of the seemingly-categorical expression “man-made [i.e., non-congenital] eunuch,” refers only to surgical castration, while Maimonides refers only to one who drank a prophylactic potion. Mishne Lamelekh disagrees, explaining Maimonides’ inclusion of the “man-made eunuch” as referring to his marriage to certain categories of women. 132 Code, Laws concerning the Wayward Woman 1:1. See BT Sota 26b, and Rashi ad loc. s.v. shahuf. 133 BT Sota 26a.

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However, the other Sages understand the biblical passage as a promise that the innocent wife will bear seed, hence, a sterile woman, if innocent, may be blessed with recovery. Maimonides follows the opinion of the Jerusalem Talmud that it depends on whether the husband already has children, or has another wife.134 If the suspect is his only wife and he is childless, she is exempt from the ordeal. But if he has children, or has another wife, the suspect is included in the ordeal. In the former case, he is not permitted to keep her as a wife, since through her he cannot satisfy the injunction to procreate.135 If he already has children or is married to another, and can procreate, he is not prohibited from remaining married to the sterile woman, who must then undergo the ordeal.136 This inclusion, too, is incompatible with my suggestion as to the rationale underlying other exclusions. The pain she experiences, given this disability, which undermines her sexual identity, could be expected to make her more susceptible to sexual misconduct, and hence exclude her from the ordeal, regardless of whether her husband has progeny. The court may intervene on behalf of a mentally-disabled husband whose wife behaves in such a way that were he in possession of his faculties, he would suspect infidelity: “And these are the ones warned by the court: any woman whose husband has become a deaf-mute or mentally disabled, or who is incarcerated.”137 The court acts on behalf of the disabled husband in warning the wife to desist from her suspect behavior: “they did not [empower the court] to make her drink [the bitter water], but to disqualify her from receiving her ketuba.” R. Jose disagrees, claiming that the court can “also make her drink,” that is, the court’s warning has the same effect as her husband’s.138 The disagreement is rooted in different interpretations of the biblical phrase, “then shall the man bring his wife unto the priest” (Num. 5:15). The Sages require that the man who brings her be the one who warned her, to ensure a personal encounter between the partners to the imperiled marital relationship. Putting the wife through such an ordeal should be a last resort when interpersonal dialogue has been exhausted.

134 Code, Laws concerning the Wayward Woman 2:10, Kesef Mishne ad loc.; JT Sota 4:3; the Sages uphold R. Eliezer’s view. 135 BT Jebamot 65b–66a. 136 See Mishne Lamelekh ad loc. 137 Mishna Sota 4:5. A baraita cited in BT Sota 27a refers, not to one imprisoned, but to a weakminded man (shiamum, literally, “of bored mien”), as distinct from one who is mentally disabled (shote). The term may refer to one experiencing severe emotional stress. Or it may be one who, while not so incompetent as to be classified as mentally disabled, suffers from flat affect as a defense against his wife’s misbehavior. 138 Ibid. The parallel text in Numbers Rabbah 9:26 concurs, citing R. Jose’s view anonymously. Maimonides upholds the view of the Sages.

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R. Jose disagrees,139 construing the stages in the ordeal process simply as formal requirements. The Talmud notes that the court’s right to intervene at all is based on the presumption that “as a general rule, when a woman transgresses the ethical code, [the husband] is agreeable [to the warning brought by the court],” that is, there is a presumption that the husband implicitly empowers the court to act on his behalf, and agrees with its rulings.140 The Talmud is clearly committed to protecting the potential autonomy and integrity of the mentally disabled person, in the hope he will recover. His rights must be protected by the courts in the interim.

6. Concluding comments Affirmation of personhood for disabled people is explicit in some, and implicit in many, halakhic sources; in a small number of cases, however, there appears to be insufficient attention to the rights and perspective of the disabled. One example is the differential status of the disabled regarding the ordeal of jealousy. Even in these cases, however, the sources provide an abundance of principles and precedents that can be utilized to argue for the interests of the disabled, and for their fullest possible inclusion in the halakhic community. We have looked at examples where rabbinical authorities and respondents used innovative interpretation to rule in a manner supportive of the disabled regarding torts, violation of the Sabbath for medical emergencies and circumcisions, and violation of the dietary laws to further the education and independence of the disabled. As we also saw, the Talmud itself evinces sensitivity to the rights and interests of the disabled in rulings such as that authorizing the courts to intervene on behalf of the deaf-mute whose wife is suspected of wanton behavior. The Talmud is careful to insist on preservation of the autonomy of the individual in such a case, making only reasonable presumptions regarding his interests rather than sanctioning blanket action on his behalf. At the same time, it is vital to emphasize that Jewish law is founded on the application and interpretation of ancient principles, and it would be anachronistic and misleading to expect these principles to reflect current philosophies which regard equal, or even preferential rights for the disabled, as self-evident and noncontroversial. It would appear that certain groups of disabled men are not given the same consideration with respect to jealousy, specifically, the same option to resolve their feelings of marital insecurity, as are other males. Further, some of those whose wives are disabled are also prevented from achieving such resolution, even when the

139 BT Sota 27a, citing a baraita in which there is consensus that the redundant “ish, ish” in Num. 5:12 is the basis for the court’s intervention. 140 BT Sota 25a.

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disability does not seem pertinent. And some disabled women disqualified from the ordeal must still bear the severe financial consequence – divorce without payment of the marriage-settlement. Perhaps seemingly-closed issues can be revisited for further consideration. As new insight is gained into the physical and psychological conditions associated with various disabilities, the halakhic outlook is only enhanced by asserting forcefully the inherent human dignity of the disabled.

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The capacities of able-bodied persons are used as the standard of competency for assessing the disabled person’s ability to participate in religious life through observance of the precepts. In the next three chapters, we examine disability and observance from the vantage point of the disabled, as members of the community, within the family, and as individuals. This chapter treats of liturgical observances that are primarily verbal, such as prayer.1 The Bible requires verbal worship only for Grace after meals (Deut. 8:10), the recitation of the Shema prayer (Deut. 6:7), declarations accompanying the first fruit offerings and the tithes (Deut. 26:5–10, 13–15), and public readings by the king at the final assembly of the Sabbatical year (Deut. 31:10ff ). The Sages mandated additional liturgical observance, connecting almost all the precepts to verbal activity by requiring the recitation of benedictions preceding, accompanying, or following their performance, and other accompanying recitations of various kinds. Tractate Berakhot is the primary talmudic record of this creativity. Prayers and benedictions are recited for almost all events in the holiday cycle of the community and the life cycle of the individual.2 Some are recited in the privacy of the home, others must be recited with a quorum of ten.3 The Pentateuch is read in the synagogue on Mondays, Thursdays, and the Sabbath, as well as on the festivals; these readings are supplemented by additional scriptural readings on the Sabbath and holidays. On Purim, one must read the Book of Esther from a scroll, the Megila. The Passover Seder is accompanied by readings from a text, the Haggada, composed of excerpts from the Bible, Rabbinic writings, poems and hymns. These observances commonly depend upon verbal communication – speech and hearing – and sometimes, visual communication. Hence, the participation of

1 However, the essence of prayer is the non-verbal service of the heart, see BT Taanit 2a. 2 See BT Menahot 43b, JT Berakhot 9:5, Code, Laws concerning Prayer 7:14, Shulhan Arukh OH 46:3; and Vider, 1985. 3 For some activities, e.g., the introductory recitation to the Grace after meals, a quorum of three suffices.

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those with speech or hearing disabilities, both as individuals and as prayer leaders, is problematic. On the other hand, inclusion, exemption or disqualification from this communal religious and symbolic activity has significant impact upon the lives of the disabled. Because they either cannot speak or cannot hear, those with speech or hearing disabilities cannot resolve this impasse by having someone else recite for them while they listen, on the basis of the principle that “one who hears is like one who speaks.” One who hears the kiddush has discharged the obligation to recite it, for example, by virtue of this principle. Merely listening to such a recitation is tantamount to performing the act. However, it has been suggested that verbal observances be carried out by way of thought in place of spoken words.4 Hearing or speech-disabled individuals can, it is suggested, mentally rather than verbally say the prayers or recitations, independently of the prayer leader, by lip-reading while others are discharging the duty for the family or community. Were this solution found acceptable, the disabled individuals in question would not just be fulfilling the precept vicariously, but actually fulfilling it themselves. This option, however, does not allow for participation in the sense of active leadership, and hence, cannot provide the individuals affected with the opportunity for equal participation in communal prayer. A number of benedictions pertain directly to physical, and particularly, sensory capacities: sight, hearing, smelling, and standing, among others, barring those with corresponding impairments from being able to make these benedictions regarding themselves, although the question of whether they can be made for others arises. Other liturgical observances do not focus on physical capacities, but require these capacities, for example, reading aloud in the synagogue, and narrating the Haggada at Passover. This chapter is divided into three parts: the first deals with liturgy concerning physical capacities and benedictions relating to one’s existential condition; the second covers synagogue liturgy, and particularly, the concept of community dignity in the context of prayer leadership by the disabled; and the third reviews the situation with respect to liturgy-related home observances, such as preparing the weekly Torah reading.

1. Liturgy concerning physical and existential states A number of the benedictions recited daily or weekly reflect wonderment and gratitude at the gifts of physical enablement bestowed upon us by the Almighty. Are those who do not share these gifts enjoined to recite the benedictions, protest their deprivation, or remain silent? Are they allowed to articulate them? And if so, can they pronounce them for others? Where there is no direct enjoyment of a

4 Shuchatowitz, “Spoken Mitzvos. . . .” In support of this view he cites Shulhan Arukh OH 62:4, Rema 94:6 and Magen Avraham 101:2 as well as Ps. 5:2.

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physical endowment, does the fact that some secondary benefit nonetheless accrues to the disabled individual impact on these issues? 1.1. Benedictions relating to vision Benedictions that pointedly focus on experiences of visual capacity raise questions about the disqualification or obligation of the blind. Is a blind person bound to recite the morning blessing, “Blessed art Thou . . . who opens the eyes of the blind”? And as prayer leader (hazan), assuming he can serve as a prayer leader, an issue discussed below, may he recite this for others? Unauthorized recitation of this benediction would constitute a violation of the proscription against taking God’s name in vain.5 And as we have seen, those who are not personally bound to recite this blessing may not recite it for others. On one view, these, and similar blessings, are expressions of personal experiencing. Insofar as an individual does not see, does not have his eyes “open,”6 he is disqualified from their recitation.7 But on the view of the Geonim, he may recite this blessing, as it is a reflection on the natural gifts with which the Almighty endows humans rather than a testimony to the individual’s personal experience. However, even some holding this view would nevertheless disqualify one who is blind, because his lack of vision at the time of the recitation is not due to incidental factors – for example, being in a dark room – but is a consequence of a constitutive physical flaw (hisaron begufo).8 This benediction can be distinguished from a somewhat similar introductory benediction preceding the Shema: “Blessed art Thou . . . Creator of lights.” This blessing cites light as a general phenomenon, and hence, even the blind can recite it. Applying the view according to which the preliminary benediction, “who opens the eyes of the blind,” expresses such a general appreciation for gifts bestowed on mankind, Pri Hadash insists that as a reflection on light in general, inability to experience it is irrelevant, whether incidental or because of physical disability.9 Those in agreement explain that the benefit that one who is blind derives from having a sighted person lead him, because the path is lit, suffices to warrant his having some kind of personal experience of this gift. His expression of gratitude here can certainly relate to benefits other than that deriving from the direct perception of light.

5 A wasted blessing (berakha levatala), in the view of Rab, Resh Lakish and R. Johanan in BT Berakhot 33a; see Code, Laws concerning Blessings 1:15, 11:16. 6 R. Avraham, the son of Maimonides, is especially caustic about the practice of the blind reciting this blessing when serving as hazan, calling it “a gross error” (responsum #83). Shulhan Arukh OH 46:8 rules that the benediction should be said, but without the Holy Name: “Blessed art Thou who opens the eyes of the blind.” 7 Rema on Shulhan Arukh OH 46:8; also see Mishna Brura ad loc., concurring. 8 See Magen Avraham on Shulhan Arukh OH 46:14, cited in Yabia Omer 5, OH 10. 9 On Shulhan Arukh ad loc., cited in Yabia Omer, loc. cit.

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Even according to the restrictive view of the blessings, which requires direct experience of perception, this particular benediction has an alternative interpretation that permits the blind to join in its recitation. Seeing is often used metaphorically to connote understanding, as in the statement, “I see what you mean.”10 Nevertheless, in consideration of the many authorities who prohibit the blind from reciting the benediction, R. Ovadia Yosef suggests that the blind not recite it, so as to avoid possible violation of the injunction against reciting a superfluous blessing (berakha sheeina tzerikha). But if it is recited by one who is blind, others need not intervene, as his recitation is sanctioned by many authorities. 1.2. Benediction over the Havdala flame Just as the Sabbath is ushered in with sanctification rituals and benedictions, so is it ushered out with the ritual of Havdala, literally, “separation,” ending the Sabbath. It involves wine, a lit candle, and aromatic spices. For the same reason advanced regarding the benediction “who opens the eyes of the blind,” the Radbaz disqualifies the blind from saying the blessing, “who creates lights of fire,” recited during the Havdala ritual.11 Again, some authorities question this, arguing that the blind benefit from others’ seeing by means of the fire. 1.3. Sanctifying the new moon The same issue arises over the prayers recited for the sanctification of the new moon (kidush levana).12 R. Solomon Luria maintains that the blind are obligated, since the blessings over the moon are expressive of general appreciation, regardless of perception. The Radbaz and others take the opposite view. 1.4. Benediction preceding the Shema The Talmud refers to a liturgical practice, no longer carried out,13 instituted for the benefit of worshippers who had prayed individually rather than with a quorum of ten (minyan), and therefore had to omit sections of the liturgy that may only be recited with a quorum. Such segments include the call to bless God – Barkhu – followed by the first benediction preceding the Shema – “who createst lights,” especially sacred because it contains the sanctification prayer, “Holy, Holy, Holy is the Lord of Hosts” (Isa. 6:3). To recoup what they missed, the tardy worshippers could, after the regular service was completed, have an abbreviated service, led by a prayer leader, who

10 One authority cited in Yabia Omer uses the example from Gen. 3:5, “your eyes shall be opened,” which is meant metaphorically rather than literally. 11 Radbaz, responsum 6:2, following Shulhan Arukh OH 298:13. 12 See Nishmat Avraham, OH 298:13, p. 253, note 1. 13 See Rema on Shulhan Arukh OH 69.

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recites the Barkhu prayer, followed by the “creator of lights” benediction, a practice called “slicing of the Shema” ( prisa al hashema), because the blessings before the Shema are cut, with only one of the two being recited.14 Although this added service includes a benediction in appreciation of the luminaries one sees in the heavens, a blind person may serve as prayer leader here, and in this capacity recite the benediction out loud for others to answer “amen.” R. Judah says, “One who, in his entire life, has never seen light, does not lead this recitation.”15 The Talmud adduces a baraita wherein the Sages press R. Judah to retract his disqualification, since in another experience where “vision” figures, many have discerned enough [with the mind’s eye] to expound the ‘Chariot’ (merkava) [i.e., to engage in metaphysical speculation on the mystical material in the first chapter of Ezekiel] and yet they never saw it.16 In response, the Talmud reconstructs a fascinating dialogue. R. Judah is taken to reply that in mystical speculation, all depends upon the discernment of the heart (abneta deliba), and by concentrating, that is, by setting his mind on the matter, the expounder can achieve understanding. But here [one reads the benediction] on account of the benefit which he derives [from the light], and one who is blind derives no benefit. One cannot compare the inner discernment of that which is grasped spiritually to sensory perception. Citing R. Jose, the Sages disagree, arguing that “one who is blind does derive benefit”: I was long perplexed by the verse, “And thou shalt grope at noonday, as the blind gropeth in darkness (Deut. 28:29).” Now, what difference does it make to the blind whether it is dark or light? Until the following incident occurred: I was once walking, on a pitch-black night, when I saw a blind man walking in the road with a torch in his hand. I said to him, “My son, why do you carry this torch?” He replied, “As long as l have this torch in my hand, people see me and save me from the holes, thorns and briars.” This type of chain of benefit allows for benedictions expressing appreciation of sensory experience to be recited by those appreciative of the benefits bestowed on

14 See Kesef Mishne on Code, Laws concerning Prayer 8:5 for alternative explanations of the term. 15 Mishna Megila 3:7. 16 BT Megila 24b.

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them by another’s sensory experience of the phenomenon in question. R. Judah disagrees, however, requiring that the benediction be interpreted literally as an expression of gratitude for the direct sensory experience itself and for that experience alone. Under any other circumstances, the one reciting it is testifying falsely.17 Maimonides follows the Sages, ruling that one who is blind may lead this service.18 A related matter is the adage that “what is written may not be recited by heart.”19 Does this not preclude recitation of the texts by the blind? R. Benjamin Zeev,20 in distinguishing between a blind individual’s leading the Prisat Shema and his not reading from the Torah, argues that this adage does not apply to texts with which the community is familiar, for example such textually-based prayers as the Shema. Rather, it protects the masoretic writings from error that might occur in the context of lengthy readings, such as Torah readings, by mandating that they be monitored by concurrently following the written text. Another authority suggests that the adage be taken together with the principle that precepts being performed for others should be observed more strictly than those performed for oneself. On this reasoning, while one who is blind cannot recite for others liturgy taken from the Bible, such as the introductory chapters of the morning service, since this involves written texts which must not be recited by heart, he can do so for himself.21 Since the prayers that make up the Prisat Shema are of Rabbinic composition, on this view the blind may lead them without violating the admonition against reciting texts by heart. The Ritba explains that even according to R. Judah, one who becomes blind but is not blind from birth may lead the Prisat Shema, because only the congenitally blind have never seen light. The experience to which this benediction is grateful testimony does not have to be current; recalling a past experience suffices, as long as there was, at some point, personal experience of the phenomenon.22 Note that this argument is by no means self-evident. Recited each day, to capture the recurring wonder of daybreak, it is not unreasonable, on R. Judah’s conception, to exclude one who does not, each day, experience this. Allowing a faded

17 Tanhuma, Toldot, 7, where this stance is reported in R. Judah’s name. Because R. Judah maintains that the blind are exempt from precept-observance in general, it is curious that he feels any need to cite an explanation for this particular instance of disqualification. This is explored by Tosafot on BT Megila 24a s.v. mi shelo, which cites the far-fetched opinion of R. Hanina b. R. Hillel that the Mishna is speaking of a sighted person who, due to contingent circumstances, such as his having been brought up in a cave, never experienced light. 18 And may lead the regular prayer service as well; see Code, Laws concerning Prayer 8:12. R. Yomtov of Seville, in his responsum #97, explains this leniency as stemming from the fact that the practice of Prisa is Rabbinic and not biblical: since almost all authorities agree that the blind are obligated regarding Rabbinic precepts, they may perform the acts in question for others. 19 BT Gitin 60b derives this, and the converse, from Exod. 34:27. 20 Binyamin Zeev #245, invoking various authorities, especially Tur OH 14. 21 This distinction is made by a R. Haim adduced in the Tur, loc. cit. 22 Ritba, responsum #97; this is also the opinion of the Mordechai, cited favorably in Binyamin Zeev #245.

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memory to suffice for the bona fide expression of this benediction reflects the exercise of innovative halakhic thinking to enable inclusion. 1.5. Benediction over the Havdala spices During the Havdala rite, spices are sniffed as a kind of ritual compensation for the loss of the Sabbath, following the benediction, “creator of all the spices.”23 May someone whose olfactory sense is impaired recite this blessing, or perform the ritual for others? The situation appears parallel to that of the blind with respect to recitation of the blessing “opens the eyes of the blind,” or to “creator of the lights of fire,” recited during the Havdala ceremony. The Radbaz disqualifies such a person,24 arguing that this benediction is recited over the personal delight experienced upon smelling the spices, and not as a benediction preceding observance of a precept. While, regarding the latter, it is possible to recite the blessing on someone else’s behalf on the grounds of “interdependence” (arevut), in this case, the benediction refers to personal enjoyment of the sensory experience and cannot be recited on the strength of another’s experience. Note that temporary olfactory incapacitation due to colds, etc., does not disqualify one from obligation here, since R. Zeira’s rule can be applied: “Wherever proper mingling is possible, actual mingling is not essential; but where proper mingling is not possible, actual mingling is mandatory.”25 That is, where lack of the capacity to smell is chronic, one is disqualified; where due to a temporary condition such as a cold, the blessing can be recited.26 1.6. Existential condition While not formulated specifically to apply in cases of disability, there are two benedictions centering on gratitude and acceptance of one’s existential reality that raise issues about disability: the benediction of deliverance, and the benediction over the good and the bad. Based upon the biblical verse, “Let them exalt Him in the congregation of the people, acclaim Him in the assembly of the elders” (Ps. 107:32), four types of deliverance from danger customarily occasion recitation of the blessing of deliverance,

23 See BT Pesahim 103b; JT Berakhot 5:2, 9b; Code, Laws concerning the Sabbath 29:24–8. 24 Radbaz, responsum 6:2. 25 BT Menahot 18b. Also BT Menahot 103b; Baba Batra 81b; Hulin 83b. This principle is often adduced in responsa, e.g. Yabia Omer, 5, OH 10. The rule distinguishing necessary and contingent deviation from procedure has its origins in the discussion of mixing oil with flour in preparing the meal offering. The Mishna teaches that if the oil is not mingled exactly as prescribed, the meal offering is still valid (Menahot 3:2). R. Zeira explains that this is because it was possible to follow the procedure exactly, though in fact it was not followed. 26 Yabia Omer 5, OH 10 compares the matter to the distinction, noted above, between blindness and being in a dark room.

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“Hagomel,” after the individual in question has been called to the reading of the Torah in the presence of a quorum: “those who have crossed the sea, those who have traversed the wilderness, those who have recovered from an illness and prisoners who have been set free.”27 The individual intones, “Blessed art Thou. . . who renders good to the undeserving and has rendered me every kindness”; the congregation responds, “May He who rendered thee this kindness render thee every kindness forevermore.” A contemporary student of these issues who is himself disabled from birth asks an interesting question: can a congenitally disabled person, upon reaching adulthood, recite the blessing of deliverance in acknowledgment of his gratitude for his life despite his disability, deformity, or chronic affliction?28 Is there a time limit on the period between the deliverance from danger and the recitation of the benediction? A distinction is made between two types of benediction: those of praise (birkat shevah) and those which give thanks for enjoyment (birkat hanehenin).29 The former is recited after, the latter, before, the experience. While the former may be recited over another’s experience, the latter are recited only over a personal experience. When R. Hana of Bagdad and other Sages, friends of R. Judah, recited the benediction of deliverance upon witnessing his recovery from illness, R. Judah declared, “You have released me from the obligation to give thanks,”30 evidence that the benediction is one of praise rather than enjoyment. Parents can make the benediction in acknowledgment of their relief at a child’s escape from mortal danger, though the primary experience of danger is the child’s.31 Even if the parent recited this blessing at the time of the child’s birth, this does not discharge the child’s later32 obligation for two reasons: (1) the child did not hear the blessing; and (2) one can discharge another’s obligation to recite a blessing only if it relates to an obligatory precept, or, if not, if the blessing is a personal obligation.33 The option is thus open for adult recitation of the benediction of deliverance over one’s escape, as a child, from mortal danger.

27 BT Berakhot 54b. See Code, Laws concerning Blessings 10:8 and Hagahot Maimoniot ad loc. for the degree of illness warranting this. In some congregations, it is the custom for women to recite this blessing after childbirth. 28 Inbari, 1991. 29 See the discussion in Chapter 5. 30 BT Berakhot 54b. 31 Shulhan Arukh OH 219:4. Henkin, p. 44, defends the permissibility of the parent’s reciting a blessing of deliverance over the deliverance of one’s child, and also defends the recitation of the blessing over the deliverance of friends, arguing that in such cases the text may be changed to render the wording suitable. 32 See the prefatory comments of Magen Avraham on Shulhan Arukh OH 219, to the effect that minors are not obligated to recite this blessing, since they are generally not obligated regarding preceptobservance. Coming to the same conclusion from another angle, the Maharam Mintz (Lahmei Toda #5) opines that the minor ought not recite this blessing since he thereby recalls his father’s sins in consequence of which he, the child, was punished, a possibility alluded to by Magen Avraham as well. 33 Inbari adduces Nachmanides on this point.

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R. Jacob b. Asher allows up to three days between the event and the recitation of the benediction.34 R. Aaron Halevi allows thirty days to recite the blessing with a quorum, after which it can be said privately.35 R. Joseph Caro rules that there is no actual limit, though he recommends thirty days,36 an opinion shared by R. Ovadia Yosef.37 This means that upon adult reflection, a disabled person may indeed formally acknowledge the early experiences that resulted in his disability. He may, of course, decide that he is not grateful and choose not to recite the benediction, since the benediction requires that one experience the joy of relief. As to the benediction over the good and the bad, the Sages teach that, “it is incumbent upon one to bless [God] over the bad in the same way as he blesses [Him] over the good.”38 They derive this teaching from the verse “And thou shalt love the Lord thy God with all thy heart” (Deut. 6:5), taken to mean that one must love God with one’s entire being, including the evil impulse.39 As Maimonides understands the injunction, one is to love God even when angered, distraught, or sinning; overcoming anger and accepting one’s lot, whatever it is, with joy and generosity of spirit.40 One is never in a position to evaluate the full significance of good or bad events; even joyfulness should not be exaggerated but should express itself in good works. To bemoan one’s lot and become depressed over one’s fate, troubles or limitations is contrary to the spirit of this injunction. Benediction over negative events constitutes a concrete means of assuming a positive attitude, of neutralizing or even transforming elements that threaten to undermine the will to live, allowing the affected individual to undertake reconstruction of his life without denying his disability. Blessing God for the adverse events in one’s life need not be construed as denial of their unfortunate character and insincere or forced reframing of these events as positive, as is evident from the law that for positive events one recites, “who is good and causes good” (hatov vehametiv); while for negative, one recites “blessed is the true Judge,”41 identifying each appropriately. Clearly, one who is blind, for example, acknowledging his blindness in such a blessing, and overcoming the temptation to

34 35 36 37 38 39

Tur OH 219, relying on Nachmanides’ opinion. Commenting on BT Berakhot 54b. Shulhan Arukh OH 219:6. Yehave Daat 2:14. Inbari credits this responsum as the source of his citations. Mishna Berakhot 9:5. An inference from the word “levav” for heart, used instead of the shorter “lev.” The added letter bet (two) is taken to signify that one is enjoined to love God with “two hearts,” viz., the good impulse and the evil. 40 Commentary on the Mishna ad loc. See also Code, Laws concerning Blessings 10:2–3 where he again emphasizes the capacity to let joy overcome anger and frustration: “the extra love wherein he is commanded to gratefully praise [ Him] joyfully even when he is suffering.” And see Shulhan Arukh OH 242. 41 BT Berakhot 54b.

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be depressed, would nonetheless be overjoyed to regain his sight.42 The blessing is undoubtedly a call to heroism in a human reality no one would ordinarily choose.

2. Synagogue observances We now turn to the role of the disabled in key synagogue liturgical activities: the recitation of the Shema and the Amida prayers; and communal recitations from the Scriptures – the thrice-weekly Torah readings supplemented by readings from the Prophets (haftara) on the Sabbath and holidays, and the recitation of the Book of Esther on Purim. 2.1. Reciting the Shema The Shema prayer, composed of three excerpts from the Pentateuch, is recited twice a day.43 It expresses belief in the oneness of God, commitment to the commandments, and recollection of the Exodus.44 A declaration of one’s identification as a Jew, this prayer has throughout history been recited by Jews about to be martyred. Philosophically, it constitutes a manifesto of the Jewish revolt against paganism, urging a new, monotheistic world order. The essential message of the Shema, its first verse, must be articulated with the lips and not merely meditated on, even on the view of R. Meir, for whom the significance of this precept depends on the intention of the heart.45 Whether one must hear the Shema being recited depends on one’s reading of the word “hear” in the prayer’s first verse, “Hear, O Israel: the Lord our God, the Lord is one” (Deut. 6:4). R. Judah holds that ideally one should hear it, but even if not, one has fulfilled the precept.46 Arguing that hearing is mandated by the use of the word “hear”: “let your ear hear what you utter with your mouth,” R. Jose insists that without hearing, the precept is not fulfilled. On this strict reading, the hearing or speech disabled cannot fulfil this precept.47 In the end, the Talmud,

42 Midrash on Psalms 146:5, commenting on “The Lord openeth the eyes of the blind” (Ps. 146:8): “No privation is greater, no af f liction is greater or more cruel than blindness.” 43 Deut. 6:4–9; 11:13–21; Num. 15:37–41. See BT Berakhot 2b, 9b. 44 Mishna Berakhot 2:2, BT Berakhot 13a. 45 BT Berakhot 13b, and 15a for R. Meir’s view, interpreting the proof-text, “Which I command thee this day, shall be upon thy heart” (Deut. 6:6). 46 BT Berakhot 15a. Adduced anonymously in the Mishna, it is attributed to R. Judah by the Gemara. 47 This is evident in the Talmud’s interjection of a query about which authority ruled that “a deaf person who can speak but not hear should not set aside a heave offering; however, if he does set it aside, his action is valid.” It speculates that regarding the heave offering even R. Jose would accept the validity of the act of one who is speech-impaired, though he cannot articulate the benediction, on the grounds that the benediction is a Rabbinic requirement, and hence, its absence does not disqualify the biblically-mandated heave offering. Recitation of the Shema, however, is biblicallymandated, and thus, at least according to R. Jose, silent recitation is invalid even post facto.

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adducing several traditions to the effect that even ab initio, one does not have to hear the Shema, follows R. Judah, thereby including the disabled. Regarding unclear diction,48 it is R. Judah who is strict, disqualifying an imperfect rendering, while R. Jose is lenient, accepting such renderings. Here too the law follows the lenient view, allowing for inclusion of those with speech impediments. Maimonides takes these rulings as decisions permitting the acts “after the fact,” as does Alfasi; Kesef Mishne concurs.49 2.2. Prayer: the Amida A Jew prays formally thrice daily and more frequently on Sabbaths and festivals. The central focus of the liturgy is the Tefila, literally, “the prayer,” also known as the Amida, literally, “the standing,” because it is recited while standing, and, because it was originally composed of eighteen benedictions, also called the Shemone Esrei, literally, “eighteen.”50 Its text and protocol (times, place, posture, etc.) are meticulously defined. This rigorous structuring presents obstacles to those with certain disabilities, but the stipulations are interpreted flexibly. One of the directives is that one must face Jerusalem during prayer. If one is travelling, one must dismount and secure his animal, in order to face the correct direction. If the mount cannot be secured, one must face Jerusalem while astride the animal. If this too is impossible, “he should direct his heart toward the Holy of Holies [the Temple in Jerusalem].”51 Taking account of the incapacity of the blind, the Talmud instructs that, “a blind man or one who cannot identify the main landmarks should direct his heart toward his Father in heaven, as it says, ‘And they pray unto the Lord’ (I Kings 8:44).”52 The blind are not singled out in being instructed to orient themselves mentally rather than physically, as is evident in the continuation: If one is standing outside the land of Israel, he should direct his heart towards the land of Israel. . . . If he stands in the land of Israel he should direct his heart toward Jerusalem. . . . If he is standing in Jerusalem he should direct his heart toward the Sanctuary. . . . If he is standing in the Sanctuary he should direct his heart toward the Holy of Holies . . . . If he is standing in the Holy of Holies, he should direct his heart toward the mercy-seat (kaporet, see Exod. 25:17). If he is standing behind the

48 49 50 51 52

See Rashi ad loc. s.v. velo dikdek. Code, Laws concerning the Shema 2:8; Kesef Mishne ad loc. See Mishna Berakhot 3–5 and Code, Laws concerning Prayer 1–15. Mishna Berakhot 4:5, also Tosefta Berakhot 3:4. BT Berakhot 30a. Given the end of the verse “. . . in the direction of Your chosen city,” the Talmud can be construed as suggesting that for the blind person, having intention toward God points him in the direction of Jerusalem.

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mercy-seat, he should imagine himself in front of the mercy-seat53. . . . In this way all Israel will be turning their hearts toward one place. Bidden to pray though limited in their capacity to orient themselves spatially, not only are the blind not at a critical disadvantage, they may even be able to “direct their hearts” with less external distraction. Fixed parameters for prayer are important aids to achieving a state of focus and concentration; they are not of the essence. The Mishna cites R. Eliezer’s assertion that “if a man makes his prayer a routine task, it is not a genuine supplication.” Since prayer is indeed primarily supplication (rahami ),54 and not a formalistic ritual with exacting requirements, the disabled need not be deprived of this elemental religious experience due to exemption on the grounds of inability to fulfil minor specifications. 2.3. Being counted in the quorum As we have noted in several places, since prayer, like halakhic culture in general, is collective in its orientation, inclusion in the prayer quorum is significant. Can an individual with impaired communicative functioning be considered eligible for inclusion when community – the quorum – requires inter-personal communication? Does his participation not undermine the very idea of the quorum? Though a completely deaf and mute person would seem to be excluded, on the grounds that he is unable to communicate, sign language is deemed sufficient, according to some authorities, to allow for his inclusion in the quorum.55 Provided he grasps what is transpiring, as evidenced by his ability to communicate with gestures, his presence suffices. However, the quorum should have a majority of hearing and speaking worshippers who can respond to the recitations of the prayer leader – an exclusively deaf quorum would have to revise the prayers in sections of the liturgy where responses are ordinarily required. Where a congregation nonetheless insists on having a quorum of those who are obligated according to all views, this policy has been understood as simply an expression of stringency rather than as slighting the deaf.56 However, my position is that this acquiescent attitude discourages use of the law to assure that the disabled are accorded the consideration, respect, and place in the community due them by virtue of their membership in the covenant. 2.4. Prayer leadership There are differing views on whether the blind can lead the Amida prayer for others, varying with both the position taken on the question of whether the blind are

53 54 55 56

In the western part of the forecourt of the Temple. Rashi ad loc. s.v. ahorei bet hakaporet. BT Berakhot 20b. Yehave Daat 2:6 lists authorities who concur. See Shuchatowitz, “Synagogue Minyon. . .,” note 7. Ibid. Shuchatowitz notes, however, that even where the stringent option is preferred, if the lack of a quorum mandates counting one who is a deaf-mute in the quorum, this is halakhically valid.

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generally exempt from or obligated to observe the precepts, and that taken on the question of whether daily prayer is mandated biblically, as Maimonides argues, or Rabbinically, as Nachmanides contends.57 The Mishna’s omission of the blind from those disqualified from leading the worshippers in the Amida prayer implies that they are permitted to do so.58 Contrariwise, Midrash Tanhuma teaches that one who is blind, while halakhically empowered to lead in the recitation of the abridged Shema and to translate [the Torah when it is read in the synagogue], may not lead the prayers (eino over lifnei hateiva) [lit. “does not pass in front of the ark”] or read the Torah, and if a priest (kohen), does not raise his hands [ join in the priestly blessing].59 If the blind are generally obligated to observe the precepts, as R. Meir holds, leading prayers is just one illustration of this status; this is the view expressed in the Mishna. By contrast, the Midrash Tanhuma may be said to follow R. Judah, who considers the blind exempt from precept-observance, and hence disqualified from leading the service.60 The Ritba’s ruling is not categorical. While concurring with the opinion of R. Judah, he nonetheless adduces opposing opinions on this issue and offers a third alternative.61 He cites R. Dan Haashkenazi, who prohibits the blind from leading on the grounds that they are generally exempt from precept-observance. And even if obligated Rabbinically, they are nonetheless excluded from leading. His reasoning is that while the dispensation for those of similar status to perform commanded acts for one another would ordinarily apply, prayer was Rabbinically ordained only while the Temple was in existence; with its destruction, the precept of prayer gained biblical status. The prayer offering was designated as compensation for the loss of the sacrificial service, and in this capacity, it is virtually of

57 See Maimonides’ Book of Precepts, Precept 5, and Nachmanides’ critical commentary ad loc. This is taken up in commentary on Code, Laws concerning Prayer 1:1 by Kesef Mishne, Lehem Mishne, and Migdal Oz. The scholars adduce midrashic and talmudic texts supporting one side or the other. In support of Maimonides, e.g., the text from Sifre Deut. 41, commenting on Deut. 11:13, “To serve Him with all your heart,” is adduced; in support of Nachmanides, BT Berakhot 21a, characterizing recitation of the Shema as biblically mandated, and the Amida as Rabbinic. 58 Megila 4:6; this passage is discussed below. 59 Toldot 7. 60 Though this is somewhat problematic, since Tanhuma cites R. Judah by name in excluding the blind from the Prisat Shema, suggesting that the opinion of the anonymous Sages here is not that of R. Judah. It may be that these Sages hold R. Judah’s opinion in general, but regarding Rabbinic laws, such as Prisat Shema, hold the view that the blind may lead, to which R. Judah takes exception because of the visual testimony implicit in the blessing of “who createst lights.” 61 Ritba, responsum #97.

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scriptural status. As proof of his contention, R. Dan Haashkenazi adduces another variant of the same Mishna which explicitly excludes the blind.62 The Ritba then cites R. Aaron Halevi, who maintains that the blind may lead the prayer service, on the grounds that a Rabbinically-ordained activity may be led by one who is Rabbinically obligated to perform the act in question. The Mishna’s omission is due to the fact that the eligibility of the blind here is selfevident. The Ritba concurs with the reasoning of R. Aharon Halevi regarding prayer and the Prisat Shema, since both are at most Rabbinically ordained, but questions whether this ruling can be implemented in practice. The Ritba makes an interesting distinction between educated and uneducated congregations. The blessing “true and steadfast” (emet veyatziv), following the Shema, for example, may be of biblical status, fulfilling the scriptural precept of recalling the Exodus every day. Furthermore, he argues, the basic obligation to pray is scripturally grounded, though the formal prayer texts are only of Rabbinic standing. Even if, as Nachmanides maintains, prayer is not essentially biblical, it nonetheless incorporates some biblical obligation. Now with respect to these obligatory scriptural components, he argues, the blind are unable to serve as readers on behalf of others, given that their obligation is, in his view, only Rabbinic. However, if the congregation is sufficiently learned for the members to personally recite the “true and steadfast” liturgy in the course of the service, and to fulfil the silent prayer recitation individually, independently of the repetition by the prayer leader, then one who is blind may lead the Amida. That is, he may lead because all the prayers he recites on behalf of others are of merely Rabbinic status. However, if the congregation is not sufficiently educated, but relies on the prayer leader to recite on its behalf, then he may not lead.63 The Ritba attributes the omission of the blind from the controversial Mishna to the fact that in some cases the blind are indeed permitted to lead the service, depending on how learned the congregation is.64

2.5. Leading prayer from a wheelchair Ordinarily, the prayer leader stands, as a matter of dignity and gravity. “Know before Whom you stand,”65 is often inscribed over the Torah ark facing the prayer leader. In addition, the Amida, even when recited by the congregants individually,

62 Cited by Alfasi on Megila 4:6. He also cites Midrash Tanhuma, Toldot 7. 63 Binyamin Zeev #245 concurs, arguing that most people are not competent to pray independently, but depend on the leader’s recitation. 64 See Nishmat Avraham, OH p. 19, for opinions of later decisors, most in favor of the blind leading the Amida. Of the opinions he cites, only Havat Yair #176 questions appointing one who is blind, even in only one eye, on the High Holy Days. 65 BT Berakhot 28b.

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is said standing,66 excepting the sick and infirm, who may pray seated.67 What of someone in a wheelchair serving as prayer leader or cantor? Or reading the Torah, or the Megila? Ezra Batzri argues that a qualified prayer leader who is wheelchair-bound is not only acceptable, but even preferable to an able-bodied person. Touched by the personal experience of suffering, his prayer will be more authentic: “A broken heart is a valued offering before God, that is likely to arouse the congregation’s devotion.”68 Batzri acknowledges that there may be resistance to the idea that the wheelchair-bound can serve as prayer leaders. He counsels those with doubts to “go in the ways of the Holy One, Blessed be He. Just as he is compassionate, you be compassionate. As He accepts the prayer of a chair-bound disabled person, so too can the congregation follow in God’s ways and accept the prayer of a sick person, without making an issue of its dignity.” The Ritba also maintains that the dignity of a community is not undermined by having someone blind leading the service; disqualification, if anything, must be on grounds other than the congregation’s dignity.69 This is, however, disputed by R. Jacob Emden, who claims that a blind kohen should not participate in the priestly blessing.70 Even according to those who follow R. Meir and consider the blind obligated to observe the precepts, in this, he continues, they would disqualify him, out of respect for the dignity of the congregation. He rules thus even regarding one who is only blind in one eye, whom the Talmud explicitly allows to recite the priestly blessing. He then argues that just as a blind priest is disqualified from the priestly blessing, so is any blind person disqualified from leading prayers. However, he does not explain in what way the participation of the disabled lessens the community’s dignity. Perhaps R. Emden’s aesthetic sense rebels against having a deformed person play a visible role during a moment of communal spiritual elevation, out of fear his physical appearance may mar the ceremonial majesty of the occasion. There is a dimension of collective religious drama in which aesthetic considerations are weighty,

66 Code, Laws concerning Prayer 5:2; Shulhan Arukh OH 94:6. 67 Nishmat Avraham, OH p. 70, note 1, suggests that in fulfilment of prayer protocol to step back and forward three steps at the beginning and the end of the Amida, one should move his wheelchair back and forth in simulation of this. Though well-intended, this alternative prayer protocol seems overly literal; the issue requires deeper reflection. 68 Batzri, p. 460. The same argument is made by R. Solomon Luria regarding one who has blemishes: “God makes use of broken vessels”; it is opposed by the Zohar (Emor, p. 90b); cited in Nishmat Avraham, OH p. 20, note 1. 69 Responsum #97. This he derives from his teacher, R. Aaron Halevi, who argues that the passage in Megila 4:6 (3:6) does not explicitly comment on the eligibility of the blind to lead prayer. It comments on the preceding law regarding one in tattered clothing, who may lead the Prisat Shema but not the Amida, as does BT Megila 24b. One in tattered clothing is disqualified out of consideration for the dignity of the congregation (kevod hatzibur), a factor not germane in the case of the blind man. 70 Sheeilot Yavetz 1:75.

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transcending even the desideratum of maximizing the covenantal participation of the disabled by enabling them to take on the fullest possible halakhically-sanctioned religious commitment. The Ritba rejects the priority of aesthetic considerations over ethical or spiritual ones, while R. Jacob Emden takes the position that aesthetics must not always be sacrificed in the interests of ethical sensibility.71 2.6. Reading of the Torah The Torah must be read by the community; individuals are not obligated to read or to be called up to the Torah (known as “receiving an aliya”). The nature of the precept is such that congregants, and the disabled among them, cherish the honor of “ascending to the Torah.” Reading from the Torah, an ancient synagogue ritual, takes place on the Sabbath, morning and afternoon, and on Monday and Thursday mornings; it is also read on festivals and Holy Days.72 Originally, the person called up to the Torah (ole) was given the honor of personally reading the portion publicly on behalf of the community, as well as benedictions before and after. Due to the decline in knowledge, a special reader (baal kore) was designated, and the individual called up would recite only the benedictions.73 Long ago, it was the practice for a translation in Aramaic, the vernacular, to be recited every few verses by a translator. The Torah may not be read by heart; the reader must actually see the text as he is reading.74 Further, it must be read with punctiliously correct pronunciation.75 Are the disabled obligated or exempted from being called to the Torah? Are they allowed to read the Torah for others? After emphasizing that one should not leave the synagogue while the Torah is being read, the Talmud tells of one blind scholar’s seemingly disrespectful gesture during the reading of the Torah: “Rav Sheshet used to turn his face to another side and study. He said: We [are busy] with ours, and they with theirs.”76 This has been variously interpreted. Some downplay the element of blindness, and see it as an illustration of the scholar’s exemption from participation in the proceedings during the reading of the Torah. Since his primary vocation is Torah study, he is exempt from this supplementary communal educational activity.77 In contrast, Rabbenu Jonah reads

71 This conjecture could be explored in analyzing the disqualification of blemished priests from Temple service and blemished animals from sacrifice, see Mishna Bekhorot 5–7. 72 Deut. 31:10–13, Nehemia 8:1–8; JT Megila 4a:1, 75a, BT Baba Kama 82a, Mishna Megila 3– 4; BT Megila 29a–31b; Mishna Gitin 5:8; and Code, Laws concerning Prayer 12–13. 73 On the basis of the dictum that “one who hears from the reader is equal to the reader,” i.e., it is as if he read it himself. See JT Megila 4:1. 74 Not even one letter may be read by heart, BT Gitin 60b, Code, Laws concerning Prayer 12:5. 75 Code, Laws concerning Prayer 12:6. 76 BT Berakhot 8a. 77 According to Alfasi, following the Geonim, also cited in Tosafot on Berakhot 8a s.v. Rav Sheshet and in Rabbenu Jonah on the Rif.

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the episode as pertaining to exemption due to blindness, because “things given in writing may not be said by heart.”78 Since Rav Sheshet could not properly participate in this observance were he called up, he is excused from it altogether. Thus, his turning aside to continue learning during the reading is not considered disrespectful. One midrash includes the reading of the Torah in its list of precepts from which the blind are disqualified, though they are permitted to serve as translators of the Torah.79 Apparently, public leadership by the disabled in the purely educational function of translator was not deemed offensive to the community’s dignity; disqualification from reading the Torah, we may presume, was due to inability to see the text. R. Benjamin Zeev argues not only that one who is blind may be called up, but also that he may read the Torah for others, on the grounds that this precept is Rabbinic in origin, and the blind are Rabbinically obligated to observe the precepts.80 He reconciles the apparent opposition of Shibolei Haleket by explaining that the latter only meant that the blind are not obligated, not that they are disqualified. If they choose to take part, their blessings, and Torah readings, are valid. The injunction against reciting by heart what is transmitted in writing applies only when someone is reading the Torah alone, but not if there are others who prompt him where he errs.81 It is intended to prevent the distortion of the written tradition by absolute reliance on oral memory; but there is no prohibition against reciting the Torah reading by heart if it is being monitored for accuracy with the written text, which must be faithful to the official recorded text of the Torah.82 As long as it is absolutely faithful to the written text, a reading from memory is not invalid. It should be noted that as Maimonides rules that it is invalid,83 it is highly significant that R. Benjamin Zeev nevertheless has the temerity to rule that such a reading is valid. The Radbaz holds that even if the blind are obligated to observe all the precepts, they are nonetheless exempted from this precept, since they are exempt from all observances that require vision, whether biblical or Rabbinic. He explains the anecdote about R. Sheshet on this basis. In contrast to able-bodied persons who are called up even if someone else will actually be doing the reading, in the case of the blind, others cannot read for them. The Radbaz maintains that to require one who is blind to “see,” figuratively speaking, through the eyes of

78 79 80 81 82

BT Gitin 60b. Tanhuma, Toldot 7. Binyamin Zeev #245. He states this on the basis of a pamphlet (kuntres) by the Tashbetz. In terms of the Brisker method of Talmud study, it is not an obligation of the individual reading to read from a written text (hiyuv gavra), but rather, the obligation is that the text read be accurate (hiyuv heftza). 83 Code, Laws concerning Prayer 12:8.

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another, by having him read for him, is to carry the dictum “one who hears from the reader is equal to the reader” too far. Lack of the skills needed to carry out the reading of the Torah and physical incapacity to see the text are not to be equated.84 R. Jacob Emden takes an even stronger position.85 He prohibits the blind from reading even if they are discreetly prompted by someone else; he sees such prompting as irrelevant to the problem. He disagrees with the opinion of those who permit the blind to be called up to the Torah86 and argues that the general dispensation allowing a designated reader to read for those who are called up works only because, in principle, they could have read the Torah, which is not true of the blind. Unlike R. Benjamin Zeev, he understands the legal obligation as one incurred by the individual (hiyuv gavra), that is, the reader. Thus he disqualifies the blind from reading the Torah, and even from being called up to the Torah, let alone from reading for others.87 R. Emden goes even further, arguing that even in study, the blind are prohibited from reciting the Torah by heart (even without a blessing), explaining away the stories of R. Joseph the blind scholar by insisting that he must have been studying from the Targum (Aramaic translation) and not the original text. Does a speech impediment severe enough so that most listeners, especially those not accustomed to it, will be unable to make out the words being recited, disqualify one from being called up to the Torah?88 This is clearly problematic with respect to both the Torah reading proper and the blessings, given that the person called up must read along with the public reader. The “hearing is like reading” principle, however, may allow for participating without actually reciting. It is not essential for the community to hear the blessings, and suffices that the congregants know they were said so that they may answer “amen.”89 With regard to recitation of the blessings, Rabbenu Jehiel holds that only for the first and last aliyot must the blessings preceding and following the Torah readings be pronounced out loud.90 Hence, if the speech-impaired individual is a kohen, called up first, these arguments are moot. Others can, however, be called up. The Rema, disagreeing, suggests that the speech-impaired individual be called to the Torah after the required number have been called, as an additional aliya

84 85 86 87

Radbaz, responsum 3:425. Sheeilot Yavetz 1:75. Taz on Shulhan Arukh OH 141:3. This argument is rejected in the Mishna Brura, which rules in accordance with the Taz, permitting the blind to be called up to the Torah, see Nishmat Avraham, OH 76, p. 19. 88 See Inbari and Levi, 1990. 89 At the famed great synagogue of Alexandria, a flag was waved at the front so that those at the back would know when to respond to the blessings; clearly, they could not hear the blessings (BT Suka 51b, Rashi ad loc. s.v. laanot amen; JT Suka 5:1 (20a), Korban Haeida ad loc. s.v. al kol berakha uberakha). 90 Cited in Tur OH 139:6, and the Rema.

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(hosafa), a perfectly legitimate procedure, even for a kohen, or as maftir (the one called up last for the reading from the Prophets).91 One who is mute, totally speech-disabled, however, is disqualified from being called up due to this absolute inability to recite the blessings in any manner.92 What of the speech-disabled individual who can communicate audibly through an electronic device? R. Moses Feinstein rules that hearing a voice magnified by microphone is halakhically equivalent to hearing ordinary speech. Like ordinary speech, it is distinguished from a recording in being proximately initiated by the speaker’s act.93 Hence, a mute individual using an electronic voice amplifier may recite the blessings, however feebly, and may be called up to the Torah for the Monday and Thursday services. Inbari and Levi further argue that even the Minhat Shlomo would agree to this, on the grounds that in the case of this kind of non-obligatory blessing, it is quite sufficient that the congregation know that the individual has recited the blessing, even if they cannot actually hear it.94 Recitation of the blessings by someone who is speech-impeded raises an additional problem, that of sacred liturgy (davar shebikedusha), or liturgy of particular holiness that may not be recited without ten people present.95 The introductory invocation of the Torah-reading benediction calling upon the community to praise God, “Praise the blessed Lord,” belongs to this genre.96 Were one with a speech impediment to make this introductory call without being understood by the quorum, this would be tantamount to not having a quorum. The Kadish prayer generally recited after conclusion of the Torah reading is of the same sacred character. This problem has been addressed by Inbari, who notes that Magen Avraham rules that if there is no quorum at the conclusion of the Torah reading, the Kadish is recited nonetheless.97 Given this precedent, Inbari argues for recitation of the benediction introduced with the formula “Praise the blessed Lord” in the Torah service by someone with a speech impediment. As noted, those called to the Torah usually read along with the reader softly, so that in some way they discharge their original mandate.98 How essential is it that

91 Rema on Shulhan Arukh OH 135:10. 92 Inbari and Levi, relying on Minhat Shlomo, 34 s.v. ubeinyan, which argues that deaf-mutes who have attended a special school should be considered obligated to observe the precepts, yet reluctantly disqualifies them from being called to the Torah if they cannot speak. 93 Igrot Moshe OH 2:108. Note that the question of the use of electronic devices on the Sabbath is a separate issue. 94 Minhat Shlomo, 9 s.v. vehu. They dispute R. Moses Feinstein’s analysis of the microphone, considering it analogous to an echo rather than a voice. 95 See Mishna Megila 4:3 for examples. 96 BT Berakhot 21b, Megila 23b. 97 On Shulhan Arukh OH 143:1. 98 Shulhan Arukh OH 141:5.

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those with speech impediments read along in this way? Clearly, they may find it difficult to keep up with the reader’s pace. One rationale for taking a lenient position here adduces the mystical tradition that only one person should be reading at a time, in emulation of the Sinaitic moment when only Moses spoke.99 2.7. Bar Mitzva The Bar Mitzva is a rite of passage celebrated after a boy’s thirteenth birthday. The boy is called to the Torah and, on the Sabbath, often recites the haftara, the selection from the Prophets, as well. Those who choose to do so may also lead the prayer services.100 A Bar Mitzva is not a sacrament, but rather, marks the fact that the boy is of legal age, and hence obligated to observe the precepts. In addition to this personal significance, however, the Bar Mitzva is meaningful as a public acknowledgment of the boy’s membership in the community. R. Arye Leib Grossnass justifies calling to the Torah a deaf-mute boy who has learned to speak, since the public reading of the Torah, unlike the liturgy, serves primarily educational ends. He may even recite the blessings, since the congregation fulfils its obligation to hear them from the recitation of other people called to the Torah.101 R. Solomon Freehof assesses the possibility of a Bar Mitzva for a mentally-retarded child from the perspective of Reform Judaism, citing the classical sources.102 Acknowledging that the mentally disabled are Rabbinically exempt from precept-observance, he notes that even a minor may be called to the Torah, provided he knows to whom the benedictions are addressed.103 This test would appear applicable to a mentally disabled child, since his halakhic status is much like that of a minor. Freehof adds: “If it does the child good, if it will stir the child to a little extra effort which he may need, if it will bring joy to his parents who have had so much sorrow, then certainly the child should be allowed to recite the blessings and the father to read the prophetical reading,” since “Bar Mitzva is not really sacramental or mandatory as such.”104 Insofar as it does not have to be read from a handwritten parchment scroll, and is, in fact, usually read from a printed book, the selection from the Prophets can even be read by heart. Hence, a blind boy may recite the haftara from a Braille text on the occasion of his Bar Mitzva. Faitel Levin asks more generally whether

099 Zohar on Parshat Vayakhel. 100 In non-Orthodox synagogues, the same is done by girls (Bat Mitzva). In some Orthodox congregations, if the girl chooses to read from the Torah or the haftara, a separate women’s service is held. 101 Grossnass, Responsum, pp. 9–10. 102 Freehof, 1963; cf. Hammer, 1992. 103 Shulhan Arukh OH 282:3, based on BT Megila 23a. R. Joseph Caro borrows the test from BT Berakhot 48a, where it serves to screen a minor for participation in the quorum of three for the blessing preceding the Grace after meals. 104 Freehof, pp. 26–7.

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Braille reading is equivalent to “recitation by heart, to mental reflection, to speech, to writing, to nodding with the head, all relevant in various areas of halakha.”105 Emphasizing the modal difference between sighted perception and touch as means of accessing a text, he notes that prior to reading the Torah a blessing is required, while prior to thinking about the Torah no blessing is required. Does Braille reading resemble verbalization or reflection? Can the injunction to remember Amalek, for example, be fulfilled by the Braille reading experience, since it satisfies the halakhic requirement that the act of recalling go beyond mere recollection?106 These questions do not appear to have been taken up in the halakhic literature. 2.8. Reviewing the weekly Torah portion By law, we are required to review the weekly Torah portion twice, and once with the Targum (official Aramaic translation).107 This institution ensures the transmission of the community’s sacred texts and inculcation of its precepts. Some allow translation into any vernacular in lieu of the Targum. Though holding the blind to be generally obligated to observe the precepts, the Radbaz notes that the blind are exempt from this particular obligation, just as they are exempt from that of the synagogue Torah reading; nor need they fulfil this precept by having others read for them.108 2.9. Megila reading The Purim festival was instituted to celebrate the Persian Jews’ deliverance from the threat of annihilation through the machinations of Haman, advisor to King Ahasuerus, by the courageous intervention of Esther, the Jewish queen. The Book of Esther is read on the eve of the fourteenth of Adar and the following morning.109 All are qualified to read the Megila except a heresh [here meaning one who is deaf only, not mute], one who is mentally disabled, and a minor. R. Judah declares a minor qualified.110 It is clear that heresh here refers to one who is only deaf, since otherwise the issue of his reading the Megila would not arise. The opinion expressed is that of R. Jose, who argued regarding the Shema prayer that one who cannot hear it is

105 106 107 108 109

Levin, pp. 133–4, citing Bleich, 1983. Sifre Deut. 25; Torat Kohanim, at the beginning of Behukotai; BT Megila 18a. BT Berakhot 8a; Code, Laws concerning Prayer 13:25. Radbaz, responsum 3:425; Har Tzvi OH 1:37 concurs. Code, Laws concerning the Megillah and Hanukkah 1–2, Shulhan Arukh OH 686–97; BT Megila 4a. 110 Mishna Megila 2:5; see BT Megila 19b and JT Megila 2:5.

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disqualified. Here too, one who cannot hear the Megila reading is exempt, and hence disqualified from performing it for others. The disqualification of the deaf is disputed by R. Judah, who maintains, as does R. Meir, that just as in the case of the Shema, it is not critical for such an individual to hear the Megila, so long as he recites it. And being obliged, he may read it for others. The Jerusalem Talmud cites R. Hisda’s view that “the heresh is [listed] here by verbal habit”; that is, the heresh is listed here only because the three categories – deaf-mute, mentally disabled, and minor – are usually grouped together in the Talmud.111 On this reasoning, inclusion of the heresh here is unnecessary, and the deaf may indeed recite the Megila. Rab, disagreeing, maintains that the Mishna follows R. Jose, disqualifying the deaf.112 Maimonides’ ruling is problematic. In printed editions, he disqualifies the deaf from carrying out the Megila reading for others.113 The Kesef Mishne argues that the printed edition has a typographical error, and should exclude only the mentally disabled and minors, but not the deaf. Since, in his discussion of the Shema, Maimonides ruled against R. Jose, that is, did not require hearing for the precept of Shema to be fulfilled, his ruling according to R. Jose here appears contradictory. The Kesef Mishne nevertheless offers an alternative interpretation of Maimonides’ ruling in the printed editions disqualifying the deaf. The defining characteristic of the reading of the Megila is its role as a medium for publicizing the miracle of the Jews’ deliverance ( pirsumei nisa). Hence, unlike the case of the Shema, where it is sufficient for the reader to recite, even without hearing, here, hearing is of the utmost importance. Although the Kesef Mishne does not amplify on this, it is reasonable to suppose that inability to hear one’s voice would result in a lack to sensitivity to its pitch, emotion and expression, impacting on the dramatic quality of the reading.114 The exposition in Kesef Mishne is reluctant, laborious, and prefaced with disclaimers: “One is perplexed by our master’s ruling”; “And if one desperately insists upon maintaining the correctness of the printed version . . ..” Apparently, it prefers the emendation that does not disqualify the deaf. The explanation based on publicizing the miracle would also serve to disqualify those with speech impediments, who similarly lack the capacity to properly

111 JT Megila 2:5. 112 In line with his overall policy regarding verbal precepts, based on interpreting Exod. 15:26: “If thou wilt diligently hearken to the voice of the Lord thy God, and wilt do that which is right in His eyes, and wilt give ear to His commandments,” to refer to the precepts observed by recitation. The position of the Jerusalem Talmud argument is discussed by Korban Haeida and Pnei Moshe, ad loc. From the verse in Deut. 6:4, “Hear, O Israel,” one might conclude that this is true only of the Shema. 113 Code, Laws concerning Megillah and Hanukkah 1:2. According to the Magid Mishne, he rules thus in accordance with the anonymous Mishnaic opinion to that effect cited above. 114 If this argument is correct, Maimonides’ ruling would be consistent with the positions of Alfasi and Asheri.

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“publicize” the account of the deliverance of the Persian Jews. One could, however insist that since this view is mere conjecture about pirsumei nisa, extrapolation from it is unwarranted and it should be taken as referring only to the hearing disabled. One might try to distinguish between a hearing disability and a speech impediment, taking this idea of “publicizing” the miracle as a metaphor for the capacity – at least in principle – to be part of the communicating world. In some sense, the deaf are not fully members of this population, for their hearing disability limits receptive capacity and hence, access to others. Those with speech impediments, on the other hand, do not, in principle, lack this receptive capacity. While their “outbound” communication is limited, in this basic sense they are part of the communicating community and therefore not disqualified if lack of meticulous pronunciation does not invalidate the reading.115 According to the Rashba, for impeded pronunciation to be acceptable, mispronunciations must not extend beyond minor errors, such as reading yehudiim for yehudim, where the meaning is not changed.116 In cases of more serious errors of pronunciation, he argues, the reader is, in effect, no longer reading the entire text, and hence disqualified. However, the grounds for this disqualification are not those suggested by the Kesef Mishne for Maimonides’ disqualification of the deaf. Since the Book of Esther must be read from a written scroll, those who cannot recite the Book of Esther aloud, cannot discharge even the obligation to read it for themselves, let alone that of reading it for others, as neither thinking, lip-reading nor seeing it signed suffices, unlike the case of the Amida or saying the Shema.117 From a pedagogic perspective, having the Megila signed or enabling the deaf to follow the reading through lip-reading is clearly desirable, since this involves them in the proceedings and inculcates the Purim themes. Thought and intention, aside from technical fulfilment of the precept, are precious to God.118 Maimonides prohibits reciting the Book of Esther by heart.119 In keeping with his policy of distinguishing between Rabbinically-ordained laws that are based upon biblical commandments and those that are not, the Ritba permits the blind to recite the Book of Esther for others.120 Since this precept is only Rabbinicallyordained, and the blind are obligated to observe Rabbinically-ordained precepts, they may discharge the observance of these precepts for others. Presumably, R. Jacob Emden would disqualify the blind here on the same grounds that he

115 Code, Laws concerning the Megillah and Hanukkah 2:7. 116 Kesef Mishne ad loc., citing Hidushei Harashba. 117 Shuchatowitz, “Spoken Mitzvos,” on the basis of comments in Turei Even on BT Megila 19b; R. Jacob Emden (Sheeilot Yavetz 1:75) concurs. However, Shuchatowitz mentions a minority view that “thinking” the Book of Esther while looking at the text does suffice. 118 Shuchatowitz, ibid., citing various authorities. 119 On the basis of Mishna Megila 2:1, see Code, Laws concerning Megillah and Hanukkah 2:3. 120 Ritba, responsum #97.

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disqualified them from reading the Torah,121 since in both cases a written text must be used for the reading.

3. Rituals performed in the home While the synagogue is the main forum for communal life, the home too is a significant context for covenantal activity, providing a wide range of emotional reinforcements for covenantal consciousness and commitment: “And thou shalt teach them diligently unto thy children, and shalt talk of them when thou sittest in thy house” (Deut. 6:6–7). Leading and performing religious ceremonies and rituals in the family context, such as the Passover Seder and Sabbath kiddush, and in so doing, setting an example for, and training their children, is a source of pride and affirmation for all parents. It is particularly important for the disabled, who may be marginalized or excluded, or simply uncomfortable assuming such roles publicly. 3.1. Kiddush The Sabbath sanctification, kiddush, serves to fulfil the biblical instruction to “remember the Sabbath day, to keep it holy” (Exod. 20:8).122 An introductory ritual at Sabbath and Festival meals, it consists of a reading from the Bible and a benediction to sanctify the day, pronounced over a cup of wine. R. Isaac Jacob Weiss, a contemporary authority, explains that whether it is biblically or Rabbinically ordained, the blind may discharge the obligation to recite the Sabbath sanctification for others.123 If Rabbinic, the blind are obligated to carry it out, as we have seen; if biblical, he justifies the halakhic entitlement of the blind to recite kiddush for others on the basis of an innovative argument based on interdependence, arevut. One who is blind is potentially obligated, for were he to regain his sight, he would be obligated. This potential, coupled with his Rabbinically-ordained obligation, renders him capable of discharging obligations for others who have a primary obligation. R. Weiss argues that because deafmutes, unlike the blind, are not Rabbinically obligated, they cannot discharge this obligation for others, based on R. Jose’s view that without hearing, even a speechabled deaf person is exempt from all verbal precepts. 3.2. Passover The Seder, the festive Passover ritual meal commemorating the Exodus from Egypt, is organized around the retelling (hagada) of that story (Exod. 12), from

121 Sheeilot Yavetz 1:75, discussed above. 122 See BT Pesahim 106a; Code, Laws concerning the Sabbath 29; Shulhan Arukh OH 272. 123 Minhat Yitzhak 3:54.

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which the standard text of the ceremony derives its name. It includes benedictions, prayers, midrashic commentary and psalms, accompanied by consumption of the paschal lamb ( pesah), unleavened bread (matza), and bitter herbs (maror). The retelling is based on the biblical verse: “And thou shalt tell (vehigadeta) thy son in that day, saying: It is because of that which the Lord did for me when I came forth out of Egypt” (Exod. 13:8). Narration must accompany the partaking of the ritual foods. Observance of this precept, however, poses problems for those with certain disabilities. As essentially narrative, its observance obviously is most readily undertaken by those with verbal capacity, as was the case regarding the reading of the Torah and the Book of Esther. Those unable to speak cannot narrate. However, those whose words are not completely discernible are not necessarily disqualified, just as they were not, on all opinions, disqualified from reading the blessings of the Torah or even the Book of Esther. Because the transmission of the Passover story is primarily oral, and only secondarily via the written text of the Haggada, inclusion in this observance is less problematic. While custom has fixed the text, the Haggada is basically only a teaching tool: aside from the scriptural quotations and benedictions, the text is flexible. The participation of those with speech difficulty should depend on the extent to which this prevents them from being understood by others. It can be assumed that those attending a family Seder are likely to be familiar with the speech of disabled family members and able to comprehend their recitations. Since the actual observance mandated is not reading, but narration, there should be no reason why the blind cannot lead the proceedings, yet the Talmud records a bizarre disagreement: R. Aha b. Jacob said: A blind person is exempt from reciting the Haggada. For it is written, “It is because of this” (Exod. 13:8) while elsewhere it is written, “This our son” (Deut. 21:20). Just as there the blind are excluded, so here too the blind are excluded.124 The hermeneutic principle of verbal analogy, applied on the basis of the common term “this,” confers on the precept of narration a constraint applied in a different context, that of the stubborn and rebellious son.125 Just as the laws relating to the stubborn and rebellious son are suspended where his parents are blind, since they cannot point to him to declare “this, our son,” so the blind are exempt from observing the Passover narration, since here too they cannot literally point to “this,” the leavened bread and bitter herbs, when reciting, “It is because of this which the Lord did for me when I came forth out of Egypt.” R. Aha understands the term “this” as an instruction to point to the items in question.

124 BT Pesahim 116b. 125 Mishna Sanhedrin 8:1–5, BT Sanhedrin 68b–72a; Code, Laws concerning Rebels 7.

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As the aim of the Seder is to imprint the memory of the Exodus on the consciousness of each participant – “In every generation, each person must picture himself as if he personally took part in the exodus from Egypt”126 – the narration must be supplemented with ritual and drama. Oral narration is not enough; graphic demonstration is also required.127 This sensory requirement is also manifest in the eating of various foods, each signifying an important element in the story. R. Aha exempts the blind from the obligation to carry out the precept, as they cannot execute this demonstrative aspect of the proceedings. R. Pesach Frank argues that the inference from the rebellious son is purely formal and arbitrary, exploiting a literary coincidence to anchor the exemption. There is no substantive reason to make visual capacity a condition for conducting the Seder or recounting the Haggada. Why should the disqualification of disabled parents from the law of the rebellious son determine the eligibility of the blind to conduct a Seder, especially as in the former case, blind parents are only one of a number of groups disqualified?128 Further, various arguments against implementation of the law of the rebellious son have been put forward.129 Yet it is far from certain that the inference is indeed purely formal. One can, in fact, discern in the analogy a common import that justifies linking the two laws. Why did R. Aha limit the disqualification to the blind? Since a parent with a severed hand or finger, or one who is lame, mute or deaf, is also excluded in the context of the rebellious son, he should have hermeneutically exempted all of them. His restricting the exemption to the visually disabled suggests a more substantive connection, plausible only regarding the blind. Visual identification is not merely peripheral to the imprinting process that underlies the narration. In the case of the stubborn son, where parents are asked to condemn their son to death, this extreme measure requires an absolutely comprehensive assessment of the son’s behavior. Blindness would obviously hinder such an assessment. Isaac’s blindness (Gen. 27:1) illustrates a blind parent’s disadvantage in such a situation. This is R. Aha’s insight: the blind cannot fully harness the sensory potential of the Seder ceremony. The verbal analogy is not merely formal, but rests on a substantive difference in functioning. However, regardless of any other arguments for or against their general obligation to observe the precepts, R. Frank rejects the suggestion that the blind be included in the precepts of narration and unleavened bread on the grounds that they too were “part of the miracle,” the Exodus.130 He maintains that inclusion

126 The Seder mandate, recited prior to the Hallel prayer. 127 On the requirement that the matza and bitter herbs be lifted when the narration refers to them, see BT Pesahim 116b. 128 Har Tzvi OH 2:66. 129 BT Sanhedrin 71a. 130 This argument is used to include women in the observance of certain precepts that they would, on general grounds, be exempt from, such as reading the Book of Esther.

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on this basis is limited to cases where there is no independently-defined reason for the enactment of the ordinance, which is not the case regarding the precepts of narration and unleavened bread. Even according to the opinion that the requirement of unleavened bread, after the destruction of the Temple, is only of Rabbinic status, the Sages enjoined it to preserve a precept whose origin and foundation is scriptural, and not because it is associated with “being part of the miracle.” Hence, this argument cannot serve as grounds for including the blind if they are excluded on other grounds, as R. Aha claims. Nevertheless, the Talmud argues that R. Aha’s position is contrary to the evidence of actual cases where Seder proceedings were led by the blind, as Mareimar testifies: I asked the scholars of the School of R. Joseph, ‘Who recites the Haggada at R. Joseph’s’? And they replied, ‘R. Joseph’; ‘Who recites the Haggada at R. Sheshet’s ?’ And they replied, ‘R. Sheshet.’131 Clearly, another tradition informed this practice. Regarding R. Aha’s argument by analogy, the Talmud states that in the case of the stubborn and rebellious son there is indeed significance to the use of the word “this”: “it should have been written, ‘He is our son (beneinu hu),’ whereas it is written, ‘this our son (beneinu ze),’ from which it can be inferred that the wording is intended to exclude the blind.” In the case of the Haggada, however, use of “this” is quite appropriate – “here, if not ‘for the sake of this’ (baavur ze) what should be written? For it means, ‘for the sake of the unleavened bread and bitter herbs,’ and is not intended to exclude one who cannot point.”132 R. Ovadia Yosef affirms that the blind can indeed lead the Seder and narrate the Haggada, arguing that the precept is essentially defined by recitation (amira) of the story.133 R. Jehiel Jacob Weinberg rules that although the blind are exempt from the obligation to eat unleavened bread, they are indeed obligated to recite the Haggada. He bases this position on the fact that the import of the Talmud’s treatment of the subject is to clarify that though generally exempt from preceptobservance, the blind are Rabbinically-bound to fulfil the precept of narration.134 While pointing certainly enhances the visual component in the educational process that is a key dimension of the Seder, it is not so essential as to preclude leadership by the blind. The Haggada contains sufficiently many non-verbal sensory aids to ensure that the absence of one dramatic gesture is not critical. While it may prevent the narration from having the fullest possible dramatic impact upon the participants, this loss is offset by the inclusion of the blind.

131 132 133 134

BT Pesahim 116b. Ibid. Yehave Daat 1:78; and see Yabia Omer 1, OH 28. Sridei Esh 2:39.

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3.3. Grace and the Birkat Hazimun Grace is said at the conclusion of all meals, with special adaptations for the Sabbath and festivals. All are required to say the Grace.135 When a quorum of three or more have their meal together, the Grace is introduced with a formal liturgical invitation, joining them together as a company of worshippers, the Birkat Hazimun. In mixed company, women are not counted in the quorum. Hermaphrodites and those of indeterminate sex are excluded from constituting the quorum in mixed company. The hermaphrodite is permitted to do so when in the company of others like himself; one of indeterminate gender not even then.136 R. Pesach Frank argues for the participation of the blind, on either Rabbinic or biblical grounds, in line with the position taken on the blind in general.137 He does not see the issue of sightedness or its absence as relevant, just as he denies its relevance in the case of the Seder.

4. Final remarks From the examples we have examined, it appears that Jewish law does not take a single position on the question of the participation of the disabled in religious rituals. Rather, inclusion or exclusion of the disabled is considered only when technical aspects of the relevant precepts raise questions as to the plausibility of participation by the disabled. This is true with regard to both synagogue liturgical activity, and activities carried out in the home. Given this situation, I would argue that it is from the details of the precepts themselves, rather than from ethical principles related to the conception of man’s creation in the divine image, that the interests and rights of the disabled, and their fullest possible participation in all aspects of Jewish life, are best protected and championed. However, even in areas where the law is open to permitting inclusion of the disabled – on the question of whether the blind can be called up to the Torah, for example, there are a number of different views – social attitudes may hamper implementation of an inclusive policy. Thus, in certain cases addressing community responses may be more necessary than creative halakhic solutions. Regarding calling up the blind to the Torah, Nishmat Avraham notes the suggestion made in Kaf Hahaim that the matter be decided by the custom of the community. This policy would likely tend to reinforce halakhically unmerited exclusionary tendencies, consensus-based though they may be. Due note must be taken of the existence of a non-welcoming attitude to the disabled, in the guise of concern for

135 Code, Laws concerning Blessings 1–5; distinctions are drawn as to the status of this obligation (scriptural or Rabbinic) for women and slaves. 136 Ibid., 5:7; the same ruling in given in Shulhan Arukh OH 199:8–9. See Nishmat Avraham, OH, p. 89, note 4, on the participation of the deaf and mentally disabled. 137 Har Tzvi OH 2:66.

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strict interpretation of the law, which allows those less compassionately disposed to disregard the suffering of the disabled for the sake of piety. Batzri acknowledges that on such questions acceptance may be slow in coming, and suggests a realistic policy: “where [accepting one who is wheelchair-bound as prayer-leader] is likely to lead to strife, it should not be forced on the unwilling congregation,” but adds that those who object to the participation of the disabled are acting “contrary to the law; they are, by being needlessly strict, humiliating a Jew, a worse offense than spilling blood. They should be properly admonished about ethics and taught the law.”138 Clearly, cultivation of compassion for and identification with the disabled can do a great deal to advance such acceptance. An important means of fostering such awareness is education. Education plays a major role in integrating the disabled into the community in other ways too. For example, regarding synagogue recitation by the blind, we saw that educating the congregation to a higher level of active personal participation in the services enables greater participation in services by the blind.

138 Batzri, p. 459.

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This chapter examines the position of the disabled with respect to precepts that do not involve verbal expression, but other capacities – some inner, such as intelligence and intention, some sensory, such as sight, and some physical, such as mobility. I first examine precepts with contemporary application: ritual fringes (tzitzit), phylacteries (tefilin), Sabbath and Hanuka candle-lighting, and blowing the shofar on Rosh Hashana. The second half of the chapter examines precepts applicable only in the land of Israel when the Temple (destroyed in 70 CE) existed: the heave offering, the pilgrimage to Jerusalem, the laying of the hands over sacrifices (semikha), trumpet blowing (hatzotzrot), and rituals related to the preparation of the ashes of the red heifer for purification rites.

1. Non-verbal precepts of contemporary relevance 1.1. Ritual fringes (tzitzit) In fulfilment of the biblical commandment to place fringes upon one’s garments (Num. 15:38–41; Deut. 22:12), men, when engaged in prayer in a synagogue, wear a ritual garment, the talit, usually during the morning services only. Originally, this commandment applied to all mantle-like garments, whether worn at prayer or otherwise.1 It was not obligatory to wear a four-cornered garment requiring such fringes, but if one wore such a garment, ritual eight-stringed tassels had to be attached to the four corners.2 The precept is observed at other times by wearing a fringed garment (talit katan) under one’s shirt.3 Donning of this garment is preceded by a benediction, slightly different from that recited upon donning the “large” prayer shawl.4

1 2 3 4

BT Menahot 38a–44a. Code, Laws concerning Fringes 3:1, 10. Ibid., 3:11. Rema’s ruling on Shulhan Arukh OH 8:6.

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The Talmud cites two biblical verses: It was taught: “[And it shall be unto you for a fringe] that ye may look upon it [and remember all the commandments of the Lord, and do them]” (Num. 15:39): this excludes a night garment. You say it excludes a night garment. Perhaps it is not so but it excludes rather the garb of one who is blind? The verse, when it says, “[thou shalt make thee twisted cords upon the four corners of thy covering] wherewith thou coverest thyself,” (Deut. 22:12) clearly includes a blind man’s garment.5 Which text is primary? If Numbers 15:39, the blind could be excluded from those obligated to observe the precept of fringes, though even here, the verse can still be interpreted as referring to nightwear, that is, as limiting the relevant garments to those worn during the day. If the text of Deuteronomy 22:12 is primary, on the other hand, then the verb “look” from the text in Numbers will not be understood as excluding the blind, and instead, will be taken to imply exclusion of nightwear. The Talmud explains: I include a blind man’s garment since it is looked upon by others, whilst I exclude a night garment since it cannot be looked upon by others.6 The Sages interpret the text of Numbers in a manner that enables the blind to be included among those obligated, preferring to widen the scope of the precept as far as hermeneutically possible. Merely wearing the garment suffices to serve as a reminder of the precepts – the reason one is instructed to wear the fringes – and seeing the garment is unnecessary. Another midrash derives the inclusion of the blind by interpreting the two instructions in “that ye may look upon it and remember all the commandments of the Lord” (Num. 15:39) as addressed to two different audiences: “ ‘Looking’ is addressed to those who see; ‘remembering’ to those who do not see.”7 Inclusion of the blind in this precept is significant, because there is a visual element here, the requirement that a blue thread be woven into the fringes; blue, says R. Meir, “resembles the colour of the sea, and the sea resembles the color of the sky, and the sky resembles the color of [a sapphire, and a sapphire the color of] the Throne of Glory.”8 Despite these perceptual associations, the visually disabled are obliged to observe the precept.9

05 06 07 08 09

Since it is categorical, having no qualifications as to any visual requirement, BT Menahot 43a. BT Menahot 43a; and see BT Shabat 27b. Midrash Tanhuma (Buber edition), Shelah, 30. BT Menahot 43b. See Code, Laws concerning Fringes 3:7.

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Reading Numbers 15:39 so as to preclude wearing fringes at night, however, renders this precept time-dependent, a state which generally exempts women from obligatory observance. Hence, although the blind are included among those obligated to wear fringes, women are not.10 Some authorities dispute this reading, maintaining that the blind are indeed disqualified on the basis of Numbers 15:39, and not wearers of nightclothes. On this view, the precept is not timedependent, and must be observed by women. R. Judah held this view and attached fringes to the aprons of the women of his household.11 Ironically, then, inclusion of one group is achieved at the expense of the other. This situation is a result of the hermeneutic technique of seeking close, almost literal interpretations of the sources. Only according to the reading of Midrash Tanhuma does inclusion of the blind not preclude that of women. It may be that imaginative interpretation will prove an important strategy in efforts to halakhically further the interests of the marginalized, among them the disabled. The Talmud concludes that the blind, but not women, must wear fringes; women may do so voluntarily. Maimonides and Rabad disagree on whether they may therefore recite a benediction if voluntarily undertaking this precept. Rabad disputes Maimonides’ rule against women reciting a benediction over precepts undertaken voluntarily, maintaining that one may recite a benediction even if one observes a precept without being strictly obligated to do so.12 This has consequences for those of ambiguous gender: the hermaphrodite, who displays both male and female characteristics, and one who displays indeterminate sexual characteristics, the tumtum. Maimonides rules that they are obliged to place fringes on their four-cornered garments, given the possibility they could be deemed males, but should not recite a benediction, given their doubtful status. The Rabad allows them to recite the benediction. R. Ovadia Yosef cites the opinion of R. Joseph Haim that the blind should recite the blessing over fringes despite those who recommend that they should refrain from so doing.13 Those who propose that the blind wear fringes without reciting the blessing are motivated by concern that the blind are exempt from precept-observance altogether, or do so only by Rabbinic decree. A small yet poignant detail concerns the custom of kissing the fringes when reciting the third chapter of the Shema (Num. 15:37–41) during the daily morning service, the last verse of which (verse 41) recalls the exodus from Egypt. Preceding verses refer three times to fringes (twice in verse 38, once in verse 39); as he reads them, the worshipper holds the fringes together, passes them over his eyes and kisses them in devotional piety.14 Suggesting that the blind hold the

10 11 12 13 14

Mishna Kidushin 1:7. BT Menahot 43a. Rabad on Code, Laws concerning Fringes 3:9; Kesef Mishne ad loc. disputes this. Yehave Daat 4:55, citing Rav Pealim, 2, OH 7. Shulhan Arukh OH 24:4. This practice is motivated by the goal of “endearing the precept” (hibuvei mitzva).

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fringes during recitation of the Shema, one view recommends that they not pass the fringes over their eyes to kiss them, considering this derisive.15 An opposing view, however, recommends their participating in this gesture of affection, on the grounds that the blind and the sighted are equal and that the gesture is only symbolic (remez bealma).16 These views reflect the degree to which the instruction “look upon it” is understood as intended literally. 1.2. Phylacteries On the basis of Deuteronomy 6:8, the law mandates the donning of phylacteries (tefilin) on the head and the hand. These square boxes (about 30–35 mm wide) with black leather straps contain four excerpts from the Bible written on parchment according to the same general rules and regulations governing the writing of the Torah scroll.17 They are worn daily during the morning prayer service, but not on the Sabbath or festivals. The head box is worn like a kind of coronet; the arm box is bound on the biceps of the upper left, that is, weaker hand, the strap is wound seven times around the lower arm, and on the hand and fingers. Abraham S. Abraham reviews the many detailed situations in which those with disability in their arms, those with paralysis, and amputees, can be assisted to fulfil this precept, from the actual donning of the phylacteries to the benedictions; accommodation is made for the various physical limitations involved.18 For example, the hand box usually donned on the left or weak arm, can be donned on the right.19 If, due to disability, the phylactery has to be donned on the wrong hand, the benediction is not recited, since it is recited only where the precept is carried out according to the legal requirements.20 The literature reveals that considerable halakhic effort has been expended to enable the orthopedically disabled to observe the precept of phylacteries to the greatest extent possible.21 Abraham reports on a dispensation to supply phylacteries to one suffering from a contagious disease, whose clothing would have to be burnt upon his discharge from the hospital as a caution against the spread of the disease. R. Isaac Jacob

15 Mishna Brura ad loc., note 7. And see Shevut Yaakov, 2:38 (cited in Nishmat Avraham OH, p. 6, note 1). 16 See Nishmat Avraham OH, p. 6, note 3. 17 BT Menahot 28a–38a; Code, Laws concerning Phylacteries, Mezuzah and the Torah Scroll 1–4. 18 See his Nishmat Avraham OH pp. 7–16, and Abraham, pp. 43–47. 19 Shulhan Arukh OH 27:1; Rema ad loc. 20 Shevut Yaakov 1:3, Shaagat Arye 27:2, note 6. See also Rema, responsum 122:8. 21 One question explored is that of the interdependence of the two benedictions recited, one over each box. If they are independent, inability to affix one box should not affect the blessing pertaining to the other; if constituent parts of a single precept, then the inability to affix one box impacts on the performance of the precept as a whole, see Shulhan Arukh OH 26:2; OH 27 with the Biur Halakha s.v. belo.

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Weiss ruled that if not having phylacteries would cause this patient much personal anguish, they may be supplied for his use, though they will end up being destroyed.22 R. Weiss emphasizes that he ruled leniently only because the patient’s extreme anguish could have had a serious effect on his health. R. Mordechai Jacob Breisch also permits phylacteries to be supplied to such a patient, without requiring even that the case be one of great anguish.23 He is not prepared to prohibit fulfilment of the precept of phylacteries in such a case due to consequences which may result but would not be directly caused by the individual fulfilling the precept.24 Others forbid the supplying of phylacteries in such a circumstance as a violation of the prohibition against destroying a text bearing God’s name.25 The Rosh rejects the opinion of Sefer Haitim26 that the blind are exempt from the precept of phylacteries because they cannot properly observe the precept of fringes, viz. “looking.” On this view, not shared by other authorities, the two precepts are linked because both arise in the liturgical context. The Rosh asserts, however, that even on the argument that they are exempt from fringes, the blind are obligated to don phylacteries, as they are bound to observe the precepts generally.27 Regarding the hearing or speech disabled, the same guidelines that govern their participation with respect to other precepts apply here. Generally, they are liable, though one who is both deaf and mute is classically considered exempt.28 Abraham notes that some authorities permit their voluntary observance of this precept. The mentally disabled, too, may, with supervision, don phylacteries, as long as their personal hygiene is compatible with respect for the phylacteries.29 1.3. Candle-lighting The blind The Hanuka holiday was instituted in commemoration of the restoration of Jewish sovereignty in the second century BCE. The Talmud associates it with the miracle of the small cruse of ritually pure oil used in the Temple, which burned for eight days when it seemed enough for only one.30 Whether the supernatural

22 23 24 25 26 27 28 29 30

Minhat Yitzhak, 3, #1. Helkat Yaakov, 3, #42–44. Cited in Nishmat Avraham, OH, p. 15, n. 8, noting that the Pri Megadim concurs. R. Dov Wiedenfeld of Teshebin, Dover Meisharim, 1, #99, and R. Gedalya Felder, Yesodei Yeshurun 1, p. 120; cited in Nishmat Avraham, OH, pp. 14–15, note 8. Cited in Beit Yosef on Tur OH 38. It is said that R. Sheshet, the famous blind scholar, “never went more than four cubits without his phylacteries” (BT Shabat 118b and Rashi ad loc.). Sefer Hasidim, #674, cited in Nishmat Avraham, p. 16, note 8. Nishmat Avraham, citing R. Neuwirth and R. S.Z. Auerbach. BT Shabat 21b; cf. I Maccabees 4:49–58, II Maccabees 1:8–9; 10:3–7.

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aspect is emphasized, or the courageous human achievement, or, with Maimonides, both aspects are emphasized,31 the main observance of the holiday is the lighting of candles, beginning with one candle the first day and adding one each day of the holiday’s eight days. R. Solomon Luria rules that the blind are obligated to observe the precept of candle-lighting, though they cannot see the lights.32 Arguing that the blind are obligated to observe all the precepts scripturally, and certainly Rabbinically, following the opinion of R. Meir in the Talmud, he maintains that since the purpose of lighting candles is to publicize the miracle, it is sufficient that others can see, even if the individuals in question cannot. He compares it to the precept of fringes, where it is written, “look upon it, and remember all the commandments of the Lord” (Num. 15:39). As we saw earlier, the Talmud does not exclude the blind from observance on the grounds that they cannot see the fringes, as it is sufficient that others see them.33 If this is the case regarding the biblically-ordained precept of fringes, how much more so is it true for the precept of Hanuka candles, the primary purpose of which is to publicize – tell others of – the event.34 He argues against the conjecture that the blind were required by the Sages to observe the precept of fringes only to ensure that they, bereft of observance due to their global exemption according to R. Judah,35 do not appear to be Gentiles. It follows from this position that the blind must certainly light Sabbath candles, which are only a means of having the house lit. The purpose of these candles is peacefulness and domestic tranquillity (shalom bayit).36 Though they cannot see the lights, they are obligated to kindle them nonetheless, insofar as they are at least Rabbinically bound to observe the precepts. They may even recite the benedictions, although they relate to visual experience, because other sighted persons can then help them to benefit from the light.37 Some suggest that they should only do so if there is at least one sighted person present, but the Kitzur Shulhan Arukh stresses that candles may be lit even if the blind person lives alone. Even if no sighted person is present, the reassurance of the light is reason enough to allow the lighting. This argument is adduced to justify lighting a lamp in violation of the Sabbath for a blind woman during childbirth.38 It is reassuring for her to know that the midwife attending her has all the light she needs. Even if

31 32 33 34 35 36 37

Code, Laws concerning Megillah and Hanukkah 3:3. Maharshal, responsum #77. BT Menahot 43a. The instruction to “look” is in the plural. Code, Laws concerning Megillah and Hanukkah 3:3. Tosafot on BT Baba Kama 87a s.v. vekhen. See Code, Laws concerning the Sabbath 5:1. Kitzur Shulhan Arukh 75:13, cited in Nishmat Avraham, OH p. 10, note 5. This view rests on that of Rabbenu Tam, who holds candle-lighting to be an obligatory precept requiring actual kindling of the lights. 38 Shulhan Arukh OH 330:1.

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the midwife does not request it, the light is permitted to oblige the blind woman’s psychological need. Her psychological state is considered to be life-threatening, though the risk is slight, allowing violation of the Sabbath. The suggestion that she be falsely told there is light, since she cannot see either way, is rejected, for she will sense the difference in the way she is handled if it is dark.39 Admittedly, in the case of Sabbath candle-lighting, there is no threat at all to life, and the need is solely for reassurance and a sense of well-being. For blind individuals who are alone, awareness that the candles are lit, should someone come, and confidence that the house is in order and well-lit, constitute benefit accruing from the Sabbath candles.

Deaf-mutes The Talmud tries to pinpoint the nature of the Hanuka lighting obligation: does the kindling itself constitute fulfilment of the precept, or does it suffice that there be candles lit, even without a candle-lighting action specifically initiated for this observance? If the latter is the case, then it would suffice for a candelabrum lit prior to the commencement of the holiday to simply be moved slightly to signify that the already-burning light is being designated as a Hanuka observance.40 This point is not academic, and has definite consequences for deaf-mutes, the mentally disabled, and minors. If the degree of intention required is high, one deemed mentally incapacitated is disqualified. If minimal intention suffices, however, he is qualified, as is true with respect to the supervision of tithed produce to protect against ritual defilement, discussed below. The view ultimately endorsed by the Talmud is that deliberation and conscious performance are essential, entailing disqualification of deaf-mutes and the mentally disabled.41 Since it is nowhere explicitly stated, however, that they are disqualified from the preparations for lighting the Hanuka candles, such as arranging the candelabrum by selecting and aligning the candles, or the oil and wicks, prior to their being formally lit, this is a way for them to participate. Is the same criterion applied to Sabbath candles, or is there a lesser requirement of intention? As we noted above, according to Maimonides, there is no obligation to actually light candles for the Sabbath, it is only obligatory to have light in the home for the sake of domestic tranquillity and Sabbath joy. If so, the benediction should not be understood as relating to the kindling, but rather, as related

39 See Nishmat Avraham, OH, p. 224, note 4. Were it the case that she really would not know the difference, the law would sanction a “white lie,” insofar as ordinarily, the Sabbath may be violated only for considerations of life and death. 40 BT Shabat 22b–23a. 41 It is also endorsed by Code, Laws concerning Megillah and Hanukkah 3:9, and Shulhan Arukh OH 675.

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to the very presence of the candles. So even more than in the case of preparing the Hanuka candles, here too it is valid for deaf-mutes, the mentally disabled and even minors to make the preparations – that is, to kindle the Sabbath candles – technically subsumed under the rubric of “preparatory observances” and not considered observance of the precept proper.42 Someone else may then recite the benediction.43 Some of those who hold this view may require that the lighting take place close to the onset of the Sabbath so that it will be obvious that the lit candles are for the Sabbath and are not merely coincidental. Rabbenu Tam, however, maintains that Sabbath candle-lighting is obligatory and that actually kindling the lights is required to discharge the obligation; previously lit candles do not suffice.44 On this view, deaf-mutes and the mentally disabled are disqualified on the same grounds as they are in the case of Hanuka lighting.

1.4. Blowing the shofar The central ritual observance of the Jewish New Year, Rosh Hashana, is the blowing of the ram’s horn, the shofar. One hundred blasts are ceremonially sounded in the synagogue in the course of the High Holy Day prayer service (Num. 29:1).45 The shofar is intended to arouse repentance46 by triggering important associations. To be entrusted with blowing the ram’s horn on behalf of the community is a great honor. The same questions that have come up in other contexts involving the eligibility of the blind to discharge precepts for others arise here, and are poignantly illustrated by the following anecdote. The community of Iskillia (Egypt) engaged a blind member of the community to blow the shofar for them. A year later, they removed him on the basis of Rabbenu Jeruham’s ruling that, as one obligated only Rabbinically to fulfil the precepts, a blind person cannot discharge the precepts for those obligated scripturally.47 R. David b. Zimra (Radbaz) criticized the community for relying on the opinion of R. Jeruham, who was virtually alone in ruling that the blind are only obligated Rabbinically. He castigated them for failing to consult other scholars, for their inability to distinguish a maverick ruling from the true tradition. He claims that by general consensus, the blind are considered to be

42 Hekhsher mitzva, see Chapter 10. 43 Piskei Uziel Besheeilot Hazeman #9. Other examples include building of the Suka, because the precept requires dwelling in the booth, not its construction; and winding of the fringes, since the precept is to wear fringes. 44 Tosafot on BT Shabat 25b, s.v. vehova. 45 Mishna Rosh Hashana 4:9, BT Rosh Hashana 33b-end; Code, Laws concerning the Ram’s Horn. 46 Code, Laws concerning Repentance 3:4. 47 Rabbenu Jeruham B. Meshulem, Sefer Mesharim, Netiv 14, cited in Beit Yosef on Tur OH 473. The matter is discussed in I.J. Cohen, “The Blind in the Halakha,” p. 6, note 20.

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scripturally obligated, and thus may certainly fulfil their obligation by acting for others. He therefore ruled that the individual in question be reinstated if the party engaged to replace him proved less competent.48 For the hearing impaired, this precept is unquestionably problematic. One who cannot hear is unable to observe this precept, since it is defined by the obligation “to hear the sound of the shofar,” expressed in the benediction recited prior to its performance.49 According to the principle of parity of obligation, such an individual cannot perform the precept for others. Hearing an echo does not suffice – the original unmediated sound must be heard. While most authorities consider it invalid to hear the shofar through hearing aids, according to some authorities, it is permissible. R. Abraham Isaiah Karlitz (the Hazon Ish) considers artificially enhanced sound better than an echo, since its reproduction is more simultaneous with the original.50 If, on the strength of this kind of reasoning, hearing-impaired persons are considered obligated, they can also carry out the act for others. Clearly, permitting artificial amplification will result in greater inclusion.

2. Precepts related to the land and the Temple service We now turn to an examination of the status of the disabled in connection with precepts that are defunct because the Temple is no longer in existence. All are linked to either the land or the Temple’s festive observances and purification rites. 2.1. Heave offerings and tithes The obligation to set aside heave offerings – gifts for the priests (terumot) called “heave” offerings because they are ceremonially raised or “heaved” when offered – is based on Scripture: “And this shall be the priests’ due from the people” (Deut. 18:3–5).51 Agricultural products from new harvests are prohibited to the owner or even the priests, that is, not to be consumed, until heave offerings and tithes have been set aside.52 This is preceded by a benediction “to set aside the heave offering and tithes” when the produce tithed is one’s own, and “concerning setting aside the heave offerings and tithes.”53

48 Radbaz, responsum 4:59. His decision here is consistent with his other rulings on the blind, see above, Chapter 6. 49 Code, Laws concerning the Ram’s Horn 3:10; Tur, OH 585. 50 Shuchatowitz, “Shofar Blowing. . . .” cites Auerbach, 1978 ( p. 40, note 4) who, while considering the idea novel, agrees. See Igrot Moshe, OH 2:108 for similar reasoning. 51 Also Lev. 22:10–14 and Num. 18:8, 11–12, 26, 30. The Levites too must offer heave offerings to the priests (kohanim) from the tithes they themselves receive. This tax is known as the heave offering on the tithe (terumat maaser). 52 Religious taxation in the form of heave offerings to the priests and tithes to the Levites and poor is the subject of tractates Terumot, Maaserot and Maaser Sheni in Seder Zeraim of the Mishna. 53 Code, Laws concerning Blessings 11:12–13.

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The capacity for intention on the part of the blind is not generally questioned. However, their visual impairment limits their ability to select the choicest produce to set aside as a heave offering.54 Today, since the precept of heave offerings is observed only symbolically, and the produce is burnt, the need to choose between different qualities of produce does not arise, and the blind may participate.55 This consideration does not arise regarding the setting aside of the dough offering (hala), where no judgments as to quality are made.56 Five categories of individuals are not eligible to fulfil the precept of setting aside the heave offering, including deaf-mutes and the mentally disabled. “If they do so, their heave offering is not considered valid.”57 The deaf-mute of whom the Sages speak refers to one who can neither hear nor speak. Here, as in other places, the presumption is that, being unable to communicate with others, deaf-mutes lack intelligence. Those who are either deaf or mute but not both, “should not set aside the heave offering; but if they have done so, their heave offering is valid.”58 It is preferred that those who are only hearing or speech disabled not execute this precept due to the secondary problem of reciting the blessing preceding the act. While agreeing with R. Judah that the performance of verbal precepts does not require that one hear the benedictions or prayers being recited (even recitation of the Shema without hearing is sufficient for a hearing-disabled person),59 out of consideration for the view of R. Jose that one executing the precept should hear as well, the Talmud recommends refraining from personally undertaking to carry out this precept where it can be fulfilled through the agency of another.60 R. Joseph, the blind scholar, disagrees on the extent of the dispute, holding that the difference of views between R. Judah and R. Jose applies only to the recitation of the Shema. He argues that even R. Jose agrees that regarding all other precepts, it is not required that they be heard.61 It is interesting to hear this view on the hearing disabled expressed by one who is himself disabled. Though his view does not prevail, it is recorded for future consideration. R. Joseph’s blindness is no hindrance to his proposal’s being taken seriously in the halakhic debate without suspicion of bias due to his disability, either hardening or oversensitizing him to others’ experience of physical disability.

54 The same grounds serve to disqualify the drunkard, JT Terumot 1:4. 55 Nishmat Avraham YD p. 201, citing Auerbach. 56 Shakh on Shulhan Arukh YD 325:2, cited in Nishmat Avraham YD p. 201, note 1. The laws of the dough offering, based on Num. 15:18–21, are described in the tractate of that name. See Code, Laws concerning First Fruits 5–8. 57 JT Terumot 1:1. 58 JT Terumot 1:2. 59 See Chapter 8. 60 BT Berakhot 15b; Code, Laws concerning Heave Offerings 4:4. 61 BT Berakhot 15b.

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R. Abraham Kook accepts the ruling that the hearing disabled fulfil the precept of setting aside the heave offering through an agent who can recite the benediction,62 explaining that the option of delegating the actual performance of a precept to an intermediary is, in general, dependent upon its being a “precept that is not obligatory” (mitzva delav hiyuvit).63 Personally discharging a non-obligatory precept such as the heave offering, without the benediction, a breach of the legal requirements, is unnecessary when there is an alternative, viz., having an agent discharge the requirement, with a blessing, on behalf of the deaf individual. This involves a halakhic compromise: It would seem that this is so even if the deaf person is the owner of the heave offering, though it is preferable for the owner rather than his agent to perform the act [of setting aside the offering]. Yet in order that he not violate the Rabbinic injunction against performing a precept without a benediction, the “adorning of the precept” (hidur mitzva) [that is, being able to abide by the maxim] “the principal rather than his agent” is deferred.64 The compromise suggested by R. Kook, recourse to an agent, is not accepted by R. Frank, who argues that the Talmud limits only what the hearing disabled can do on behalf of others. Since they cannot recite the blessing, they should not ab initio undertake to discharge precepts on behalf of others. Regarding their own heave offering, however, they are not prevented by their inability to hear from undertaking observance of the precept, but should set aside the heave offering personally, and recite the blessing without hearing it.65 He argues that the Mishnaic teaching that a deaf person should not undertake the observance ab initio, but that after the fact it is valid, refers only to a deaf person acting for someone else, where the distinction between “before” (lekhathila) and “after the fact” (bediavad ) is pertinent. A deaf person acting on his own behalf is always “after the fact,” since he can never hear the blessing. Hence, he is considered from the outset to be acting “after the fact” (bediavad lekhathila). He adduces the Radbaz’s ruling that there is no obligation to have someone else perform what one cannot personally discharge.66 The deaf may therefore recite the benediction ab initio since this is equivalent to the hearing person’s “after the fact.”

62 Orah Mishpat #43. 63 One is not obligated, for example, to become a farmer so as to produce an agricultural product that will be subject to the precept of setting aside heave offerings and tithes. The precept applies only if one has produce, unlike an obligatory precept, such as the Shema, which must be recited in any event. 64 Orah Mishpat #43. 65 Har Tzvi YD #3. 66 Radbaz, responsum 3:863; and see 3:39.

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R. Frank questions the assumption that one who is deaf may not act as an agent for another ab initio because he is unable to recite the blessing to the standard of hearing required of a hearing person. The agent’s obligation to recite the blessing belongs, so to speak, to the agent and not to the one on whose behalf he is acting. Only the precept is being discharged on behalf of another, not the blessing. Hence, just as an “unheard” blessing suffices in the case of this deaf person observing the precept for himself, it suffices no less when he does so for someone else. By shifting the discussion in the Mishna and the Talmud to the context of agency, R. Frank opens up a whole new direction for the deaf to express their religious impetus to the maximum of their ability within the confines of the law. He explicitly empathizes with the deaf person’s desire to fulfil the precept himself rather than to have to act through someone else. This yearning is accommodated by arguing that “wherever it is impossible in any other way, it is as ‘after the fact,’ ” that is, it is permissible for the deaf to discharge the obligations themselves ab initio.67 Not all authorities agree with the ruling that the deaf-mute’s heave offering is invalid: R. Judah says: A deaf-mute who makes a heave offering – his heave offering is valid. R. Judah adduced the case of R. Johanan b. Gudgada’s sons who were deaf-mutes and through whom all supervision of ritually pure food in Jerusalem was carried out. Said the Sages to him: Why cite them as proof ? Supervision of ritually pure foods does not require thought and can be done by a deaf-mute, one who is mentally disabled, or a minor, whereas heave offerings and tithes require thought.68 R. Judah validates the heave offering of a deaf-mute on the basis of the fact that the sons of R. Johanan b. Gudgada, though neither hearing nor speaking, were considered competent to confirm that ritually pure tithes had not become unfit. His colleagues challenge this, arguing that less mental functioning is required to prevent ritual defilement, than to set aside the heave offering. A third view, R. Isaac’s, in the name of R. Eleazar, declares: “the heave offering of a deaf-mute may not be used as ordinary produce because of uncertainty as to whether or not he has intelligence.”69 As we lack access to the deaf-mute’s consciousness, and are unclear as to his mental capacities, there is a question of their adequacy for the heave offering. Or, if the deaf-mute is thought of as one whose cognitive functioning is unstable – at times lucid and at times subnormal70 – and

67 68 69 70

Har Tzvi YD #3. JT Terumot 1:1. Tosefta Terumot 1:1. Like the erratic shote, whose symptoms are described in this same passage: “Regarding one who is at times a shote and at times sane, this is the rule: during the times of his disability, he is regarded as incompetent for all purposes; when sane, he is regarded as competent for all purposes” (Tosefta, Terumot 1:1).

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his condition when he set aside the heave offering unknown, he is similarly disqualified.71 Insufficiently competent to act on his own behalf to fulfil the precept of the heave offering, the Tosefta proposes that “the court appoints guardians, he gives the heave offering, and they validate it for him.” Just how this arrangement satisfies the requirement that the heave offering be set aside with the proper intention is unclear, however. Presumably, supervision ensures that intention, viz., mental competence, has been displayed. Without supervision, it cannot be assumed, even when the behavior of the individual in question seems to reflect intention. Reluctance to assume that mental incompetence is invariably associated with deafness/muteness is evidenced in the distinction drawn by R. Simon b. Gamaliel between one whose condition is congenital and one who acquires it: “[A deaf-mute is] one who is so from birth; but when one who became a deaf-mute writes [a contract], they validate it for him.”72 One with communication skills acquired prior to his disability is assumed to maintain them upon losing his speech and hearing, implying that the disability of the deaf-mute is somatic rather than mental. The Tosefta further distinguishes between the merely deaf, or merely speechdisabled, and deaf-mutes: “He who hears but does not speak is called ilem; he who speaks but does not hear is a heresh. But both are considered normal and competent in all contexts.” This indicates that mere difficulty in communicating is not sufficient grounds for exempting or disqualifying the deaf-mute from preceptobservance. The ineligibility of the deaf-mute hinges on the absence of any possibility of his communicating his inner experience, and in particular, testimony as to his motivations. Intention, an indispensable element of the heave offering, also has direct bearing on the ritual defilement (tuma) of food. The Bible refers to food and vessels that become wet and then come into contact with carcasses of certain animals as ritually defiled: All food therein which may be eaten, that on which water cometh, shall be unclean; and all drink in every such vessel that may be drunk shall be unclean (Lev. 11:34). . . . if water be put upon the seed [to be sown] and aught of their carcass fall thereon, it is unclean unto you (Lev. 11:38). As susceptible to ritual defilement, produce that becomes wet is disqualified from being offered as a heave offering. However, it must have become wet due to the owner’s conscious intention and not inadvertently.73 The owner need not deliberately wet it, but must desire that his produce become wet. Similarly, only deliberately-induced contact with water renders the seed susceptible to ritual defilement.

71 Tosefta Kifshuta, Terumot 1:1, p. 293. 72 Tosefta Terumot 1:1. 73 BT Hulin 36a.

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Of such intention it is taught: If one carried his fruit to the roof because of maggots, and dew came down upon it, it does not fall under the law of “if water be put,” but if his intention was for this purpose, it falls under the law of “if water be put.”74 Only deliberate intention renders the produce susceptible to subsequent defilement. Now if a deaf-mute or one who is mentally disabled carries out the same action, deliberately, that is, with the intention of getting it wet: “Although he expected dew would come down upon it, it does not fall under the law of “if water be put,” because with these individuals, the act alone counts, not the intention.” The intended purpose of the action of putting the produce on the roof may not be speculated on, for their actions are to be understood as transparent indications of intention, there being no further underlying intent beyond what can be “read off ” the action itself, regardless of whether a different intention is avowed. What would constitute an act transparently indicating intention to wet the produce? R. Huna replies: “Holding the fruit when there is dew upon it [and turning it upside down so that the wetness reaches all the fruit].”75 Similarly, if a deaf-mute or one who is mentally disabled took a beast to the shore: even though his intention was that its feet should be washed, it does not come under the law of “if water be put,” because with these, the act alone counts, but not the intention.76 Again, the only intention that counts is that manifested by their actions; their expressions of intention are not to be relied on. What would constitute an act indicating intention? R. Huna says, “Scrubbing the feet with water.”77 Regarding the heave offering too, those not deemed sufficiently capable of intention, deaf-mutes and the mentally disabled, are disqualified on the basis of Scripture: “Of every man whose heart maketh him willing, ye shall take My offering” (Exod. 25:2–3). They lack “willingness of the heart,” that is, intention. Why can their acts not be taken as manifesting their intention, as was the case regarding defilement? Here, on the basis of Scripture, the Talmud makes a fine distinction concerning the Levites’ heave offering – the offering which the Levites

74 75 76 77

Mishna Makhshirin 6:1. JT Terumot 1:1. Mishna Makhshirin 3:8. JT Terumot 1:1.

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are enjoined to allocate to the priests from the tithes they have received from the Israelites: “And the gift which ye set apart shall be reckoned unto you (venehshav lakhem terumatkhem)” (Num. 18:27). Where “intention” (mahshava) is written, intention cannot be inferred from the act; where no intention is written, intention may be inferred from the act. Here, since “intention” is written, intention cannot be inferred from an act.78 In the case of defilement, we can assume intention on the basis of transparent behaviors, even for deaf-mutes and the mentally disabled. Heave offerings, however, are more demanding. Here, the intention must be independent of the act rather than manifested in the act. Motivation is credible only on the basis of the personal status of the individual carrying out the act, and cannot be inferred from either the individual’s declaration alone, or the nature of the act, however unambiguous. The high standard of deliberateness and intention required for these heave offerings may be explained by the transactional dimension of the precept. The heave offering involves a transfer of ownership, the validity of which depends upon the free and informed intention of both parties.79 Another possible explanation for the more rigorous standards in place here is the sacerdotal nature of the act. In making a heave offering, one is earmarking his property for those who do God’s service; this allocation must be intended wholeheartedly, and further, this intention may not be inferred, but must be patently obvious. The ineligibility of deaf-mutes, along with the mentally disabled, is, then, once again due to the opacity of their intentions, hypothesized on the basis of their inability to communicate. That is, it stems from the fact that others have no access to their inner states. New insight into and evidence of the communicative potential of deaf-mutes can be introduced here to enable their assumption of legal duties and obligations from which they have hitherto been exempt, including both acts performed to discharge their own obligations, and those performed to discharge obligations for others. 2.2. “Being seen” (reiya) and assembly (hakhel) in Jerusalem The precept of “being seen” (reiya) required a pilgrimage to Jerusalem on one of the three festivals – Passover, Weeks (Shavuot), or Tabernacles.80 It involved three

78 JT Terumot 1:1; citing R. Samuel, R. Abbahu in the name of R. Johanan, and R. Zeira in the name of the Sages. 79 This was pointed out to me by Yohanan Silman. 80 Exod. 23:17; 34:23; Deut. 16:16. According to Sifre Deut., 143, it is incumbent upon men only. The Bible implies that it is obligatory for each holiday; the Sages require that it be undertaken on only one of the three festivals (Mishna Hagiga 1:1; BT Hagiga 6a).

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commandments: the festival sacrifice (hagiga), the pilgrimage burnt offering (olat reiya), and the sacrifice of rejoicing (simha).81 Staying in Jerusalem during the entire festival week, whether Passover or Tabernacles,82 entailed much effort, financial expense, and risks, on the road and to the home left unattended.83 The lofty experience was worthwhile nonetheless, an inspiration to pilgrims even after their return home, prompting them to study Torah.84 Now reiya was not obligatory for all: All are bound to be seen85 except deaf-mutes, the mentally disabled, minors, those of indiscernible gender, hermaphrodites, women, slaves that have not been freed, the lame, the blind, the sick, the aged, and those unable to go up on foot.86 The exemption of the deaf-mute, like that of the mentally disabled and the minor, presumes lack of understanding (lav bnei deia ninhu).87 The deaf and those with speech impediments, who are generally obligated to observe the precepts,88 are obligated here too, and therefore not listed as exempt. But another baraita exempts “one who can speak but not hear, hear but not speak.”89 This contradiction is resolved by Rava, who infers that the Mishna is missing part of the text, and should read: All are bound to be seen and to rejoice, except a deaf-mute who can speak but not hear, or hear but not speak, who is exempt from being seen; but though he is exempt from being seen, he is bound to rejoice. However, those who can neither hear nor speak, who are mentally disabled, or minors, are exempt even from rejoicing, since they are exempt from all the precepts stated in the Torah.90 It is incumbent upon the merely deaf or mute person to “rejoice,” but not to be seen, unlike the deaf-mute, who is exempt from both. The exemption from “being

81 82 83 84 85

86 87 88 89 90

Sifre Deut. 138; BT Hagiga; Code, Laws concerning the Festal Offering 1:1. Mishna Zevahim 11:7; BT Zevahim 97a; Tosefta Hagiga 1:5. See Song of Songs Rabbah 7:2 on angels that house-sat to prevent looting, cited by C. Safrai, p. 17. JT Suka 5:1, 55a. Appearing, being seen (reiya), is understood by Rashi (BT Hagiga 2a), Maimonides and Jastrow in the sense of reiyat panim, the personal appearance of the pilgrim at the Temple. But Rabbenu Tam ad loc. regards it as referring to the burnt-offering brought by the pilgrim to the Temple, i.e., as short for the appearance burnt-offering (olat reiya). Mishna Hagiga 1:1. BT Hagiga 2b. Tosefta Terumot 1:1. BT Hagiga 2b. BT Hagiga 2b.

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seen” is derived by analogy from the exemption from the precept of “assembly” (hakhel ),91 on the basis of the common term “be seen” found in both verses. The exemption from attending the public reading of the Torah in fulfilment of the precept of assembly is itself derived from exegesis of the verse which defines the aim of the septennial convocation in Jerusalem, at the conclusion of the Sabbatical year, where the highest public official or the king ceremonially reads the Torah in the presence of the men, women, and children: “that they may hear, and that they may learn” (Deut. 31:12). The exemption of the deaf or mute is deduced as follows: “‘they may hear’ ( yishmeu) excludes one who can speak but not hear; ‘they may learn’ ( yilmedu) excludes one who can hear but not speak.”92 However, one should not understand the exclusion of the deaf to be based on their incapacity to learn. In fact, the Talmud brings an example to show that this is by no means the case: the deaf sons of R. Johanan b. Gudgada’s daughter. R. Judah the Prince prayed for them, and upon their recovery, they were found to be versed in law, Sifra, Sifre, and the whole Talmud, having attended the academy even while deaf.93 Exemption of the deaf here cannot be due to inability to learn, but rather, say Mar Zutra and Rav Ashi, is due to their inability to teach. This is in turn derived from reading the biblical phrase “they may learn” ( yilmedu) as “they may teach” ( yelamdu).94 One is obliged to participate in the precept of assembly only if he is later able to share the experience with others; on the assumption that the deaf and the mute are unable to do so, they are exempt from observing the precept. However, the assumption that the deaf and the mute are unable to teach may be incorrect. The mute, for example, can teach using sign language. The Tosafot explain the exemption of the deaf by arguing that teaching requires that the teacher convey what was personally “heard” at the convocation.95 R. Tanhum explains the exclusion of the deaf on the basis of Moses’ enjoining the reading of the Torah at an assembly to take place “before all Israel, in their hearing” (Deut. 31:11), that is, directly and unmediated, implying that the deaf are excluded. To explain exclusion of the mute, however, would entail the argument that teaching must be verbal. Left open is the status of one who is deaf in only one ear. This question is raised by R. Johanan, with R. Jose arguing that he is not excluded, and the Sages arguing that he is.96 Their disagreement centers on the possessive “their” in the phrase “in their hearing” (literally, “in their ears,” beozneihem). The pronoun may refer to all Israel. This, R. Jose says, means with “even one ear for each” – any hearing at all is sufficient to warrant participation. If, however, “their” is understood as

91 92 93 94

Deut. 31:10–13; Mishna Sota 7:9, BT Sota 41a–42a; Code, Laws concerning the Festal Offering 3. BT Hagiga 3a. Ibid. The root is the same but the verb form changes from simple active (kal ) to intensive active ( piel ). Since the Torah is written without vowels, this type of exegesis is very common. 95 Tosafot ad loc. s.v. eile. 96 JT Hagiga 1:1.

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referring to each individual Israelite, then each and every participant must be capable of hearing with either ear.97 Given these explanations for the exemption from assembly, the rationale for the exemption of the deaf or mute from “being seen” through the analogy to “assembly” seems purely formal. Exempting of the deaf on the occasion of the assembly can be justified because the essence of the gathering is the public recitation of the Torah, though the festive experience is not solely about hearing the Torah, and there would presumably be an important social bonding aspect, an uplifting sense of solidarity. This is implicit in R. Eleazar b. Azariah’s requirement that little children attend as well. Women, though exempt from studying the Torah (talmud tora), according to R. Eleazar, are, in his opinion, nonetheless required to be present at the assembly in order to hear and be informed, though not to the extent of deep analytical inquiry, the aim of Torah study.98 In what sense is this true of being seen as well? What substantive analogy to assembly justifies the exclusion of the hearing or speech disabled here? And in both cases, is there not, in addition to the educational imperatives involved, also an important element of presence before God? The Mishnaic phrase “all are bound to be seen,” includes among those obligated to be seen one “who is blind in one eye.” Johanan b. Dehabi disagrees, stating in the name of R. Judah: A man who is blind in one eye is exempt from being seen, as it is said: “he will see” – “he will be seen” [ yire–yirae] [Exod. 23:17]. As He comes to see, so He comes to be seen. Just as [He comes] to see with both eyes, so also [does He come] to be seen with both eyes.99 In this passage, the verb referring to the one making the pilgrimage is midrashically shifted to refer to God. The translation follows Rashi’s rendering, playing on the reciprocity of seeing: “God by man, man by God. Just as God comes to see man with both eyes [i.e., so to speak, with full vision], so too must the person see God with both eyes, or he is exempt.”100

097 R. Tanhum, cited in BT Hagiga 3a, agrees, deriving this position from the altogether superfluous phrase, “in their hearing.” Had hearing with one ear been acceptable, “that they hear” in the following verse (Deut. 31:12) would have sufficed. 098 R. Eleazar’s conservative view is disputed by Ben Azai in BT Sota 20a. 099 BT Hagiga 2a. See Tosafot on BT Jebamot 101b s.v. shema mina, citing the view of Rabbenu Tam that a one-eyed person is not disqualified from participating in levirate divorce (halitza). He can see enough with one eye to witness the spitting of the levir in the prescribed ritual. 100 Rashi ad loc. s.v. yire. Rabbenu Tam demurs because one cannot speak of God’s “coming to see” since He is everywhere. So, he explains: “just as man comes to be seen before God, by God’s two eyes, [as it were], so must he see God with his two eyes” (Tosafot ad loc. s.v. yire). Oddly, he is bothered by the anthropomorphism of God’s “coming to see” but not by his “seeing with two eyes.” Perhaps this is why he offers an additional reason, viz., so that the passive verb yirae, reflecting mikra, i.e., the written tradition, is adduced before the active verb yire, reflecting the masoret, i.e., the interpretive tradition. For Rashi, it is the reverse, the active being adduced before the passive. See Gen. 22:14 for a similar play on yire and yirae.

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The somatic metaphors appear to be taken too literally here. In God’s presence, in a sense, all are blind, while God sees fully into the hearts and souls of man. At such a time, there is no concealment, God discloses Himself completely, so to speak, opening Himself to the embrace of any human being who seeks Him. The idea that we are formed in the image of God, intended to inculcate moral aspiration within the human consciousness, refers to moral qualities: as He is compassionate, so we are to be compassionate, etc. To understand this idea as referring to physical attributes is inappropriate and misleading. The precept of pilgrimage is based on the verse, “Three times thou shalt keep a feast unto Me in the year” (shalosh regalim tahog li bashana) (Exod. 23:14). Regarding the word used for feasts, “regalim,” a baraita teaches: Regalim – this excludes those with wooden legs. Another interpretation: regalim excludes the lame, the sick, the blind, the aged and those who cannot go up on foot.101 Earlier, to argue that the lame were not excluded from the precept of pilgrimage, it was suggested that the term regalim excluded only those literally without limbs, that is, with wooden legs, but not the lame. This was quickly refuted with the argument that the exemption for those with a prosthesis follows from the word peamim. In Exodus 23:17 it means “times,” but in Isaiah it is used to mean steps. Peamim means only feet; and thus it is said: “The foot shall tread it down, even the feet of the poor, and the steps of ( paamei ) the needy” (Isa. 26:6). That is, the exemption of those with artificial limbs follows from the word peamim, and that of the lame follows from regalim. To excuse those who have difficulty walking, the Jerusalem Talmud infers the exemption of the lame and the aged from the term regalim: it exempts the sick from the injunction, “and thou shalt rejoice in thy feasts” (Deut. 16:14) on the grounds that they are not in the state of mind to rejoice.102 From the requirement that only the males are obligated to “be seen,” those of ambiguous gender are exempted: “Males” signifies that women are excluded; “thy males” (Exod. 23:17) signifies exclusion of those of indeterminate gender and hermaphrodites.103

101 BT Hagiga 4a. Without vowels, regalim can be read raglayim – legs, thereby excluding those who cannot proceed on their own two feet, but are dependent on others or on artificial supports. See Rashi ad loc. s.v. davar aher. 102 JT Hagiga 1:1. See Korban Haeida ad loc. s.v. dikhtiv vesamakhta. 103 BT Hagiga 4a.

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Even R. Judah agrees.104 Here, unlike previous exemptions we have considered, such as those for perceptual disability or lameness, the exemption is not based on the disability’s effect of limiting experiential access. Rather, this exclusion, like that of women, is a matter of gender: only those unambiguously and exclusively male are eligible. It may be that lay pilgrimage to Jerusalem is considered akin to the priestly vocation, open only to whole-bodied males. Such a suggestion is supported by the exemption from “being seen” of one who is “defiled” (tame), who is exempted even from sending his burnt offering via an agent.105 This is inferred from a linkage between “coming” to the Temple and “bringing” sacrifices to the Temple: “and thither thou shalt come; and thither ye shall bring your burnt-offerings, and your sacrifices” (Deut. 12:5–6). Just as he may not bring his offerings personally into the Temple, so too is he deemed exempt from “coming,” from “being seen.”106 Maimonides emphatically distinguishes the hermaphrodite’s non-involvement in being seen and his participation in assembly: “whoever is exempt from being seen is exempt from assembly, except for women, children and the uncircumcised . . .. And it is clear that those of indeterminate gender and hermaphrodites are obligated, since women are obligated.”107 Thus, the exclusion of women and hermaphrodites from festive proceedings is not categorical. R. Jose insists that the intent of both exclusions, the lame and the sick, is to promote forbearance: If one [being in good health] can rejoice but not walk, I cite in his regard the reference of Scripture to “pilgrim-festivals.” If he can walk but cannot rejoice [being sick], I cite the reference of Scripture to “rejoicing.”108 The exemption of these disabled and sick people out of compassion takes account of the great physical effort entailed by pilgrimage; it even seems reasonable to exempt the blind. Though otherwise vigorous, their disability would make participation in such a journey arduous. Consideration is also shown for one who is not actually disabled, but merely tender-footed: “And those unable to go up on foot” – What does this refer to? Said Rava: It refers to those of delicate constitution. For it is written: “When

104 JT Hagiga 1:1, 3a; cited in Tosafot ad loc. s.v. zekhurkha. It will be recalled that R. Judah, against the consensus, argued for circumcising a hermaphrodite in violation of the Sabbath, as is done for other males (see Chapter 7). 105 BT Hagiga 4b; Rashi ad loc. s.v. peturim min hareiya and Tosafot ad loc. s.v. dikhtiv. 106 BT Hagiga 4b. 107 Code, Laws concerning the Festal Offering 3:2. 108 JT Hagiga 1:1.

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ye come to appear before Me, who hath required this at your hand, to trample My courts?” (Isa. 1:12).109 Consideration for such infirmities is understandable, recalling that exemption is not quite the same as disqualification. However, there does not seem to be a persuasive rationale for the exemption from being seen of hermaphrodites, the deaf, mute, deaf in one ear, and blind in one eye. That individuals with such minor disabilities should have their halakhic standing diminished is problematic, as is clear from the response of one of the Sages to the insistence on vision in the context of being seen: When he came to the verse, “he will see, he will be seen” ( yire yirae), R. Huna wept, saying: “The slave whom his master longs to see will become estranged from him.” For it is written: “When ye come to appear before Me, who hath required this at your hand, to trample My courts?” (Isa. 1:12).110 Rashi explains his anguish: “a servant so beloved of his master that his master used to yearn to see him, now so distant from him.”111 To be exempted from experiencing being seen will inevitably result in estrangement from the divine. Happily, according to Rabbenu Tam, the exemptions in the Mishna112 refer only to the sacrificial offerings due on the occasion of being seen, and not to the obligation of being seen itself.113 In the view of Jerusalem Talmud: The Mishna refers to being seen with a sacrifice (reiyat korban), but with regard to being seen in person (reiyat panim) even a minor is obligated.114 On the interpretation of the Jerusalem Talmud, then, all are obligated to observe the precept of being seen, and the exemptions refer only to the sacrificial obligations. Indeed, the commentators distinguish between those who make the obligation of being seen dependent upon the obligation of bringing the pilgrimage burntoffering (olat reiya)115 and those who do not, considering being seen to be an independent observance.116

109 BT Hagiga 4a. Going barefoot is required on the Temple Mount, hence, the tender-footed are excused. 110 BT Hagiga 4b. 111 Ad loc. s.v. eved. 112 Hagiga 1:1. 113 Tosafot s.v. hakol, on BT Hagiga 2a. 114 JT Hagiga 1:1. 115 As does Maimonides in Code, Laws concerning the Festal Offering 1:1. 116 See Tosafot Harid by R. Jacob David of Slutzk, and his commentary, Ridbaz, on JT Hagiga 1:1.

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2.3. Laying on of hands (semikha) The laying on of hands was a dramatic gesture in which “an individual offering an animal sacrifice, after having sanctified it as a fit and desirable offering, brings it to the Temple court, and lays his hands on the head of the sacrifice” before it is slaughtered.117 This fulfils the injunction to “lay his hand upon the head of the burnt-offering; and it shall be accepted for him to make atonement for him” (Lev. 1:4).118 This ritual, associated with confession of guilt or expression of praise, imbuing the non-verbal rite with propositional content, is required of all sacrifices except the paschal offering, the firstling, and tithed animals. As merely the “remnant of a precept” (shiyarei mitzva), failure to observe this ritual does not invalidate the offering.119 The ritual does, nevertheless, play an important supplementary role in the sacrificial process, as “it provides a sense . . . that the sacrifice has been accepted completely.”120 The law that “all may lay the hands on the offering except a deaf-mute, a mentally-disabled person, a minor, and one who is blind,” points to an assumption that the laying on of hands requires a mental maturity and awareness that the individuals listed lack. Since this is clearly incorrect with regard to the blind, the Talmud objects: But why should the blind be disqualified? R. Hisda and R. Isaac b. Abdimi: One says, it is because we deduce the laying on of hands [for all offerings], from the laying on of hands performed by the elders of the congregation (Lev. 4:15). And the other says, it is because we deduce the laying on of hands [for all offerings], from the laying on of hands performed on the pilgrimage burnt-offering.121 The second explanation, that the exclusion of the blind from the laying on of hands in general derives from their exemption from doing so upon bringing the pilgrimage burnt-offering, is hardly convincing, since the blind are altogether exempt from bringing a pilgrimage burnt-offering. Nor is the reason for the exemption of the blind from bringing a pilgrimage burnt-offering relevant here: the blind are exempted from this precept due to the physical difficulty of making the trip to Jerusalem. Further, the exclusion of the one-eyed person had to do with

117 C. Safrai, p. 103. And see Code, Laws concerning the Manner of Offering Sacrifices 3:6–15. 118 Similarly, for the bullock offered in atonement for the transgression of the congregation (Lev. 4:15) the elders lay their hands upon its head. 119 Mishna Menahot 9:8; Code, Laws concerning the Manner of Offering Sacrifices 3:12. 120 C. Safrai, p. 112. 121 BT Menahot 93a.

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his not being capable of perceiving fully as a result of his visual disability.122 This too seems irrelevant here, given that the purpose of the laying on of hands is confessional or reverential. Here he does not have to fully “see,” as he does not come to be “seen” fully by God, unlike the case of being seen, where reciprocity was argued to be critical. Further, if this argument is valid, why not exclude from the laying on of hands everyone who is excluded from the pilgrimage burnt-offering? Yet the hermaphrodite, for example, while exempted from the pilgrimage burntoffering, is not excluded here.123 The first rationale derives from the criterion of qualification for being among the “elders of the congregation,” that is, for serving as a judge.124 Regarding the qualifications for membership in the Sanhedrin, the paradigm is Moses, inferred from: “they shall bear the burden of the people with thee (itkha)” (Num. 11:17), which the Talmud interprets as “resembling you.”125 This means that they must be of “good families, free of blemish.”126 It is unclear whether the reference is to absence of physical or moral blemish. Despite the Talmud’s clarification that “just as the court must be pure in justice, so must it be free of all blemish,”127 which Rashi interprets as alluding to an unblemished family line,128 it is more cogently interpreted as referring to physical perfection, since the proof-text adduced, Song of Songs 4:7, speaks of physical beauty. Maimonides also disqualifies the physically blemished from judgeship.129 This disqualification of the blind on the grounds of physical imperfection is also less than satisfying. Is the problem aesthetic – that only someone projecting a suitably aesthetic appearance can serve in a highly visible role? Maimonides stresses this point regarding judges appointed to the high court, possibly motivated by its role in impressing upon the public consciousness the significance of justice as reflected in the physical image of those filling the office, though he relaxes this consideration in the case of the lower courts.130 While this might be convincing regarding the collective offering of Yom Kippur or the community offering for the atonement of public error ( par heelem davar), regarding the penitential gesture of semikha made in bringing a personal sin offering, or a reverential

122 Rashi ad loc. s.v. meolat reiya. 123 Neither Mishna Menahot 9:8 nor Code, Laws concerning the Manner of Offering Sacrifices 3:8, list hermaphrodites among those excluded. 124 Mishna Sanhedrin 1:2. See Rashi on BT Menahot 93a s.v. atya semikha, referring readers to BT Sanhedrin 17a. And see Code, Laws concerning the Manner of Offering Sacrifices 3:10. 125 BT Sanhedrin 17a. R. Judah bases his view on Num. 11:17, the Sages on Exod. 18:22. 126 Rashi on Sanhedrin 17a s.v. bedamin lakh. 127 BT Sanhedrin 36b. 128 In an older manuscript of his commentary on BT Menahot 93a, s.v. miziknei haeida, Rashi apparently has this passage, BT Sanhedrin 36b, in mind, quoting it word for word. 129 Code, Laws concerning the Sanhedrin 2:6, based on BT Sanhedrin 36b and the teaching of R. Joseph in BT Jebamot 101a. 130 Code, Laws concerning the Sanhedrin 2:6.

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peace offering, disqualification on aesthetic grounds seems unreasonable. We are left wondering whether the blind in one eye, the merely deaf, the merely mute, or those deaf only in one ear are also excluded, since Maimonides does not list them,131 though the argument to disqualify them should apply to them as well as to the fully blind.

2.4. Trumpet-blowing: physically blemished priests In the Bible, trumpets are blown by qualified priests, to signal that the community is to move, to convene leadership assemblies, as an emergency prayer in times of war, and in the Temple on the fixed festivals, over the burnt-offerings and sacrifices of well-being (Num. 10:1–10). If the trumpet is not blown in the Temple, however, the sacrifices are not disqualified, because blowing serves a memorial purpose and is not an essential prerequisite of the sacrifice.132 As they are disqualified from all Temple service, blemished priests are disqualified from trumpet-blowing for the sacrifices.133 The blemished priest is not disqualified in other trumpet-blowing contexts, such as the convening of the community (“Assembly”) during the festive public reading of the Torah at the Sabbatical year’s end.134 The Tosefta brings a number of examples. Athaliah watched as “the king stood on his platform at the entrance, and the captains and the trumpets by the king; and all the people of the land rejoiced, and blew with trumpets” (II Chron. 23:13).135 In an example from a later period, R. Tarfon witnessed a lame priest blowing the trumpet, erroneously deducing that a blemished priest may blow the trumpet even in the Temple service, on the basis of a distinction between the actual Temple service (avoda) and auxiliary service (sherut ).136 R. Akiba, equating the two on the basis of verbal analogy, argues that even outside the Temple, trumpet-blowing by a blemished priest is not permitted.137 R. Tarfon retracted after it was pointed out to him that he had witnessed this trumpeting by the blemished priest at a public celebration, not at an actual Temple service. He castigates himself either for distorting what he saw, or for

131 Code, Laws concerning the Manner of Offering Sacrifices 3:8. 132 Sifre Numbers, Behaalotkha, 77. 133 JT Yoma 1:1; JT Megila 1:10; JT Horayot 3:2; and see Code, Laws concerning Vessels of the Sanctuary 6–8. 134 Deut. 31:10–13; Mishna Sota 7:9, BT Sota 41a–42a; Code, Laws concerning the Festal Offerings 3; see 3:4 on trumpeting to convene the community. 135 Tosefta Sota 7:13. 136 Tosefta Sota 7:16. 137 Tosefta Kifshuta Sota, p. 682, note to lines 134–5.

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failing to understand the received tradition.138 In any event, according to this teaching, the disabled priest may blow the ceremonial trumpet at activities other than the Temple service.

2.5. Purification rites: the red heifer The biblical purification rite for individuals and objects defiled by contact with a corpse involved their being sprinkling with waters of lustration (mei nida) by means of a hyssop dipped into the mixture, which contained spring water to which had been added the ashes of a red heifer, together with cedar wood, hyssop and crimson stuff.139 Preparation of the ashes by a priest was followed by gathering up of the ashes,140 drawing of the water, placing of the ashes into the water (kidush, literally, sanctification),141 and finally, the actual sprinkling (hazaa).142 Once the red heifer had been slaughtered and its carcass burnt to ash, the remaining preparations, as well as the actual purificatory sprinkling, could be carried out by most lay Israelites.143 The exceptions include those with certain disabilities. Deaf-mutes, the mentally disabled, and minors may not gather the ashes, because competence is required: “And a man that is clean shall gather up the ashes of the heifer and lay them up without the camp” (Num. 19:9). Only those able to “lay them up” may undertake this act, excluding those who have no comprehension of the task.144 The ashes are gathered up in the place where the heifer was burnt on the Temple Mount and stored in an undefiled place outside the camp until needed, mandating a degree of organizational skill. The same criteria are applied to the sanctification, with the same disqualifications.145 R. Judah,

138 In Tosefta Sota, JT Yoma and Megila, R. Tarfon is reported to have actually witnessed a lame priest blowing the trumpet in the context of Temple service. In JT Horayot 3:2, it is reported that R. Tarfon did not witness the blowing, but only heard of such a tradition, and from this drew the wrong conclusion, which he later retracted. 139 Num. 19, Mishna Para and Code, Laws concerning the Red Heifer. 140 BT Yoma 43a. 141 Mishna Para 5:4, Code, Laws concerning the Red Heifer 6:1–2. 142 Mishna Para 12:10, Code, Laws concerning the Red Heifer 10:6–7. 143 Sifre Numbers 124. 144 Sifre Numbers 124; BT Yoma 43a. 145 Mishna Para 5:4. BT Yoma 43a comments, regarding the referent of “they” in Num. 19:17, that it is the same as that of Num. 19:9: “Those whom I declared unto thee unfit for the gathering I also declared unto thee unfit for the preparation of the waters of lustration.” The requirements for the drawing of the water preceding the sanctification, while not mentioned in the Talmud, are assumed to be identical to those of the sanctification, see Code, Laws concerning the Red Heifer 6:2.

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however, also disqualifies women and hermaphrodites, on the grounds of not being male, stressing the phrase “he shall put.”146 The prerequisites for taking part in the sprinkling are different. One Mishna teaches: “All are qualified to sprinkle except women, those of indeterminate gender, hermaphrodites, deaf-mutes, the mentally disabled, and children who lack understanding.”147 The disqualification of women and those of uncertain gender is based on the verse concerning “sprinkling,” that may be understood as distinctly specifying a male: “And a clean person (ish) shall take hyssop, and dip it in the water, and sprinkle it” (Num. 19:18). Deaf-mutes, the mentally disabled, and minors are disqualified on the grounds of mental incompetence, because sprinkling requires intention, specifically, the intention to sprinkle the water on the defiled person or object.148 R. Ishmael b. R. Johanan b. Beroka holds that, if supervised, even the sprinklings of deaf-mutes, the mentally disabled, and minors are valid.149 On his view, what counts is not the subjective intention of the person sprinkling, but only that objectively, the sprinkling is properly targeted. Supervision by an adult can satisfy this requirement, allowing for inclusion of those deemed incompetent on their own. The only issues on which disqualification hinges, then, are mental competence and maleness. Here, unlike the case of being seen, aesthetics and physical perfection are not considered relevant.

3. Final remarks We have noted uneven hermeneutical and exegetical “seams” within the halakhic argumentation – inconsistencies and a roughness that may indicate unease at having to burden the disabled with either obligation or rejection. A comment in Tosafot strengthens the intuition that the often unconvincing literary analogies on which the various rulings are based are not the sole, or even the principal, rationales for the exemptions. The exemption from being seen of those with artificial legs, though ostensibly based upon a biblical verse, is only anchored to that verse for literary support. It is rather, reason, that is the essential source of the law. The

146 BT Yoma 43a. This is not reflected in the translation, “and running water shall be put.” R. Judah does, however, include minors on the basis of the plural verb “they shall take” at the beginning of the same verse, construing this as re-qualifying some who are disqualified from the previous activity. Maimonides follows the view of the Sages, including women. 147 Implying that mature minors are qualified, see Mishna Para 12:10 and BT Yoma 43a; cf. Tosefta Para 4 and BT Jebamot 72b. 148 Mishna Para 12:3 and the baraita in BT Yoma 14a, on the interpretation of Maimonides and R. Obadiah Bertinoro. Other commentators do not see this Mishna as addressing the issue of the presence of intention. 149 Tosefta Para 12:8.

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point of the exemption, says Tosafot, “is obvious and does not require a prooftext.”150 It is interesting to compare the pilgrimage precept with that of fringes. In the latter case, a text referring to visual qualifications is interpreted so as not to exclude the blind, but in the former, the blind are exempted, though in both cases, proof-texts referring to vision are adduced. It cannot be claimed that the inclusive interpretation in the case of fringes is consciously intended to include the blind, but it is undeniably a felicitous consequence that enhances their dignity. What it does show, however, is that inclusive interpretation is possible.

150 Tosafot on BT Rosh Hashana 5a s.v. shalmei pesah. Even Gilyon Hashas (on BT Hagiga 3a s.v. mipeamim nafka) refers readers to the passage, seeming to take pleasure in the point that ultimately, the real justifications for the exemptions are reasoned assessments which, as Tosafot states, do not require a proof-text.

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10 P REPAR ATORY OBSE RVA N CE S AND TEC HNOLOG I CA L A I DS

Halakhic culture is defined by the 613 precepts – 365 proscriptive commandments, and 248 prescriptive commandments.1 We have already examined the relations between disability, precept-obligation, and inclusion in the community. In this chapter, we survey a class of observances known as “preparatory observances” (hekhsher mitzva): observances that serve only preparatory functions, but are nonetheless required for the discharge of precepts and avoidance of transgression. One example is the preparation of parchment, required for observance of the precept of phylacteries; another is ritual slaughter of permitted animals, needed if the prohibition against eating forbidden meat is not to be transgressed. These actions are themselves devoid of religious significance, and take on meaning only as preparatory stages of precept observance. Though “merely” preparatory, however, these activities are by no means simple or mechanical. Some are quite involved and require considerable exercise of judgment. Further, the laws governing these activities are strictly delineated. Tractate Sabbath devotes an entire chapter to the preparation of instruments for the circumcision of a baby, should the eighth day fall on the Sabbath. Preparation of the Sabbath boundaries to avoid desecration of the Sabbath takes up almost the whole of tractate Eruvin. Most of the precepts entail such preparatory activities, which thus constitute a significant sphere of participation in religious life. The degree to which the disabled are included in or excluded from these activities will reflect their general status with regard to observance, though here it might be expected that the rules governing participation will be less stringent than those pertaining to precepts proper. Analysis of relevant rulings reveals that arguments adduced in favor of such less stringent halakhic requirements are often based on extra-legal considerations. In this chapter, we will also examine the role of technology in enhancing speech, hearing, vision, and mobility, enabling greater participation in preceptobservance.

1 See Maimonides, Book of Precepts, and Chill. The terms “negative precepts” and “positive precepts” are sometimes used.

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1. Preparatory activities 1.1. Ritual slaughter To be permitted for consumption, domestic animals, wild beasts, and fowl must be slaughtered using a prescribed method. Requiring both theoretical knowledge and practical skill, this ritual slaughter (shehita) is traced by the Talmud to the Bible.2 The procedure calls for precise knowledge of the organs to be severed (parts of the trachea and esophagus), as well as skill in the proper use of the knife,3 itself subject to many requirements, such as absence of nicks, which invalidate the slaughter and render the meat ritually unfit. For ordinary consumption, as opposed to meat slaughtered for Temple sacrifices, ritual slaughter does not require intention. Maimonides states: “If one performs ritual slaughter absent-mindedly, or in play, or throws a knife in order to stick it in a wall and the knife ‘slaughters’ during flight, if the slaughter is carried out correctly, in its proper place and to the proper extent, it is valid.”4 It is, however, required that the individual who performs the slaughter be committed to observance of the law.5 Hence, despite the knife example, a monkey, no matter how well-trained, is disqualified from slaughtering.6 The Mishna teaches that All may slaughter and their slaughter is valid, except a deaf-mute, one who is mentally disabled, and a minor, lest they not slaughter correctly.7 This is explained further in the Talmud: “lest they pause, press, or thrust.”8 Even if it can be shown that they know the laws of ritual slaughter, they are deemed incompetent; however, “if they slaughter while others stand over them, their slaughter is valid.”

2 Deut. 12:21; BT Hulin 28a, the opinion of Rabbi; Code, Laws concerning Shehitah 1:4. On one view, however, ritual slaughter is a precept proper, and not a preparatory activity, see Lehem Mishne ad loc. Those who maintain that it is a preparatory activity only – the view adopted here – must justify the preceding blessing. One argument for this is that even the lighting of Sabbath candles may not, strictly speaking, constitute a precept, but is nonetheless preceded by a blessing. 3 BT Hulin 28a; Code, Laws concerning Shehitah 1:9. Flaws that invalidate the slaughtering process include: pausing, pressing, digging, misplacement, and wrenching (BT Hulin 9a; Code, Laws concerning Shehitah 3:1ff ). 4 Ibid., 2:11. 5 The ritual slaughter of a Gentile is invalid, even if he knows all the laws and even under supervision, on the grounds that because he is not covenantally-bound, he is not committed to observance; see Mishna Hulin 1:1, Rashi ad loc. s.v. shehitat nokhri, and Code, Laws concerning Shehitah 4:11. 6 Tosefta Hulin 1:1. 7 Hulin 1:1. 8 BT Hulin 3a–3b.

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Even so, the Tur rules that, ideally, one does not entrust ritual slaughter to these individuals even under supervision.9 He also rules that, though an only hearing-disabled person is essentially qualified, he should not undertake it, since he cannot hear the blessing that precedes the slaughter. A speech-disabled person, however, is acceptable, since he can hear the blessing recited by someone else. The blind may slaughter, ideally, under the supervision of others. But even without supervision, if they are competent, the slaughter is valid.10 The Bah11 cites the opinion of R. Isaac Or Zarua limiting this to the non-congenitally blind, disqualifying the ritual slaughter, even post facto, of one born blind. Presumably, he doubts the capacity of such an individual to acquire the skills to the requisite level of reliability. The idea of supervision makes it clear that, in principle, the persons in question are not disqualified from engaging in this activity. The Tur’s position appears to be predicated on the assumption that they lack adequate capacity for intentionality. Given the fact that the Tur nonetheless ruled that after the fact the ritual slaughter is valid, there is room to speculate that had he been privy to the contemporary discoveries about the cognitive capacities of the disabled, he might have been inclined to rule differently. That this option is not recommended by the Tur thus should not discourage the conclusion that there may be room here for ruling that where there is confidence that the preparatory activity is being carried out correctly, its performance by disqualified disabled persons can be sanctioned. 1.2. Phylacteries The precept of phylacteries (tefilin) requires prior preparation of the parchments to be placed in the boxes. They are inscribed with excerpts from the Bible,12 in accordance with the regulations governing the writing of the Torah scroll.13 The writing and the materials are subject to exacting halakhic regulations, particularly with respect to intention and concentration when writing the names of God.14 That these directives have been adhered to is not visible to the user and depends upon the reliability of the scribe, who is therefore chosen for his piety. Phylacteries prepared by one lacking this credibility, such as a minor, are therefore presumed invalid.15

09 10 11 12 13

Tur YD 1. Mishna Hulin 1:1; BT Hulin 13b; Code, Laws concerning Shehitah 4:10; Tur YD 1. On Tur ad loc. Code, Laws concerning Phylacteries, the Mezuzah and the Torah Scroll 1:1. With certain differences of detail, e.g., the Torah scroll, unlike phylactery scrolls, is written on lined parchment, see ibid., 1:11–12. 14 Ibid., 10:1. 15 Ibid., 1:13.

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R. Samuel Landau, son of R. Ezekiel Landau, takes up the question of the validity of phylacteries written by a deaf-mute, who assisted his father, a scribe, in their preparation.16 He first provides a personality profile of the son: trained by his father in the proper script, he has a fine hand, and himself dons phylacteries daily, treating them reverently.17 While he writes the main text, only his father, who has the requisite intention, transcribes the names of God. Citing a lenient ruling,18 he argues that the father’s presence, together with the son’s understanding of the significance of phylacteries, suffices to deem the scrolls valid.19 What of the requirement that only one who is obliged to don phylacteries is considered competent to write them?20 This is the reason phylactery scrolls written by a minor are invalid. If the deaf-mute is exempt from precept-observance, he should be disqualified from writing the scrolls. It is thus curious that the Talmud’s list of those disqualified from this activity does not include the deafmute.21 Pri Megadim goes so far as to infer from this that the deaf-mute is considered obliged to don phylacteries, a position disputed by R. Samuel Landau. Comparing the deaf-mute to one who has lost a limb, Pri Megadim considers him to have lost the use of his mouth ( pumya kaiv lei, literally, “his mouth is hurt”). Just as the amputee retains his “obliged” status ( gavra bar hiyuva),22 so too should the deaf-mute here be considered formally obliged, though excused from executing the precept, that is, from donning phylacteries. Hence, he is eligible to write the text. This argument is rejected by R. Samuel Landau, since the amputee remains mentally competent, whereas the deaf-mute is deemed mentally incompetent and exempted from precept-observance, raising the question of his eligibility to prepare the scroll. Nonetheless, he makes an interesting distinction between the non-obligation of the deaf-mute and that of the minor. The latter will not be obligated until he matures; his exemption is “of his person” ( petura degufa). The deaf-mute, on the other hand, is essentially obliged, but due to his disability, which is taken to indicate mental incompetence, the discharge of this obligation is restricted. He may

16 Shivat Tzion #4. 17 While he is exempt from donning them, he is not disqualified, and is permitted to do so by some authorities, provided he accords them the proper respect. For example, Auerbach, cited in Nishmat Avraham, OH, p. 16, permits this, as he does in the case of a sufficiently mature minor. 18 Pri Megadim on Shulhan Arukh OH, introduction. 19 Arguing from the laws of writing the bill of divorce ( get ), he asserts that only in the case of writing a bill of divorce for another is the deaf-mute disqualified from agency, even when supervised; he is not, however, disqualified from “intending” the bill for a specific person (indispensable for a valid bill of divorce) if he is writing it for himself under supervision. 20 Shulhan Arukh OH 39. 21 In a baraita cited in BT Gitin 45b; BT Menahot 41b. None of the variants in Dikdukei Soferim on Menahot 41b and Feldblum on Gitin 45b list the deaf-mute among those excluded. Nor do the Tur and Shulhan Arukh OH 39, citing this baraita, list the deaf-mute. 22 According to Magen Avraham on Shulhan Arukh ad loc.

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be likened to one who sleeps or has fainted: though not obliged to observe the precepts, his status remains that of one obliged. R. Landau therefore argues that the deaf-mute is, in principle, obligated to don phylacteries (bar keshira), and thus eligible to write the scrolls under supervision. However, though sympathetic to the inclusion of the deaf-mute, R. Landau lacks the confidence to allow practical conclusions to be drawn from his reasoning. As his novel distinction is based on conjecture rather than received tradition, he ultimately retreats, restricting his ruling validating phylacteries written by a deaf-mute to those that have already been written, while recommending that the practice not continue. He also rules that the user should not recite a blessing, since there is doubt about the soundness of his arguments.23 Theoretically, however, his arguments make room for others to draw the practical conclusions he is reluctant to embrace. 1.3. Kneading “guarded matza” Unleavened bread, matza, is to be eaten on the first night of Passover24 at the Seder. In fulfilment of this precept, matza of a higher standard of supervision than that acceptable for the rest of the festival is required. The chief ingredient of this stringently supervised, or “guarded,” matza (matza shmura),25 flour, is monitored, either from the time the wheat is harvested, or from the time it is ground into flour.26 The purpose of this monitoring is to guard against the inadvertent admixture of water, which would cause leavening, rendering the matza unusable. Special attention is paid to the entire process, from the mixing of the flour and the water, through the kneading of the dough, to the final baking in the oven, to avoid inducing leavening due to delay or incompetence. R. Vidal of Tolossa, relying on a responsum by the Rashba, rules that such guarded matza for the first night, kneaded by a deaf-mute, one who is mentally disabled, or a minor, even under the supervision of a competent adult, is invalid.27 The question here is the capacity for “guarding.” A Gentile, for example, is disqualified from carrying out this function, because his intention that the kneading

23 Given his final decision, one might suspect that R. Samuel Landau’s primary interest is to spare the purchaser of the phylacteries the expense of buying others, rather than to determine the scope of the deaf-mute’s obligation. See my comments on this ruling in Chapter 11. It should be noted that sparing a petitioner financial loss is a bonafide halakhic consideration, and commonly taken into account. The halakha, after all, addresses a community with limited resources, and must balance ideal standards against such constraints. 24 Exod. 12:18, Num. 9:11. 25 Based on Exod. 12:17, “and you shall observe [guard] the feast of unleavened bread” (ushamarta et hamatzot), taken by the Talmud as an instruction to monitor its production rigorously, BT Pesahim 40a. 26 Depending on which opinion in BT Pesahim 40a is followed. Maimonides follows the stricter view, Code, Laws concerning Leavened and Unleavened Bread 5:9. 27 Magid Mishne on Code, ad loc.; Rashba, responsum 1:26.

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of the dough serve the aim of the precept cannot be assumed. The reason for the disqualification of the deaf-mute and the mentally disabled is essentially the same. In his responsum, the Rashba cites one of the holiday hymns (“Azharot Hapesah”) which, for educational purposes, incorporates the laws of the festival. It cautions that “neither the deaf-mute, one who is mentally disabled, a minor or an apostate” should knead the matza, and admonishes that “whoever eats of such matza should blush and repent.” Asked if the lyrics are accurate, since this stricture is not explicitly stipulated in the Talmud, the Rashba prefaces his answer with a survey of the views of the Tosafists and Rabbenu Jonah. The Tosafists,28 in assessing the capacity for intention of deaf-mutes and the mentally-disabled, distinguish between different kinds of preparatory activities. Where intention can be reasonably inferred from some objective behavior, which is under the supervision and guidance of a competent adult, the actions of these individuals may be deemed valid, as in the case of writing a bill of divorce. One can observe whether the individual in question follows instructions to write out the bill in the name of the specified individual, and use this determination to infer intention. In the case of intending to knead the matza dough for the purpose of observing the precept, or that of ritual slaughter (assuming intention is indeed required for ritual slaughter), however, there is no comparable process that affords an opportunity for intention to be gauged. Hence, only the deaf-mute’s action is considered valid, and only if he is being closely supervised, because the deaf-mute, unlike one who is mentally disabled, is considered to possess an essentially sound, if weakened, mental process (daata kelishta). When bolstered by close external supervision, it yields adequate, though limited, capacity for intention; specifically, intention to perform the precept in question. Supervision of one who is mentally disabled, on the other hand, that is, one deemed to have a qualitatively lower level of cognitive functioning, does not warrant our inferring a sufficient inner process on the basis of his actions. This is, according to the Rashba, the reasoning of the Tosafot. Rabbenu Jonah introduces a different concept into the discussion, that of agency. Whatever may be accomplished via an agent may be accomplished by a deaf-mute and even by one who is mentally disabled, if they are properly supervised. The supervising individual serves as the agent for their intention. Thus, they may engage in divorce, ritual slaughter, and the kneading of matza if so supervised.29 The Rashba suggests, as the sole relevant criterion, external confirmation (hokhaha). In writing a bill of divorce, the writer’s following the instructions given him is taken as objective confirmation of his intention, allowing his action to be deemed valid. However, where the activity lacks such a means of independent confirmation, it cannot be so interpreted, hence, the actions of the mentally

28 BT Gitin 22b, s.v. veha lav bnei deia ninhu. 29 Halitza, however, which cannot be carried out via an agent, cannot be carried out by deaf-mutes or the mentally disabled.

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disabled, and even those of deaf-mutes, cannot be valid, even under the supervision of a competent adult.30 Since the intention to fulfil the precept is not, in the case of the kneading of matza, as well as that of ritual slaughter, subject to objective confirmation, even the deaf-mute is disqualified despite supervision. In contrast to the Tosafot, the Rashba does not accept the validity of presuming intention here. The poet, he argues, was quite correct. R. Vidal of Tolossa, however, maintains that the strictures of the Rashba apply only to preparations carried out prior to baking the matza, and that the baking itself may be done by deaf-mutes, the mentally disabled, minors and even Gentiles, under adult supervision. He reasons that with respect to guarded matza, the requisite intention has to do with the requirement that the matza not become leavened. Once the process has reached the stage of baking, this is no longer a concern, and the intention of the individual performing the action no longer relevant. In discussing machine-made matza, R. Ovadia Yosef innovatively argues for allowing both deaf-mutes and the mentally disabled to knead the matza under supervision. He rules that guarded matza made by them is acceptable when there is no alternative,31 since their mental functioning, though not sufficient to presume intention, compares favorably to the mindlessness of a machine.32 He cites the ruling of R. Aaron Halevi that the intention of a competent adult supervisor, taken conjointly with the action of the deaf-mute or mentally disabled individual, is theoretically sufficient. R. Aaron Halevi is opposed by Minhat Hinukh,33 which bases its stance on a dictum from the laws of purity: “one cannot be responsible for what is in the other’s control” (ein adam meshamer ma shebeyad havero),34 concluding that one cannot “join” the intention of one who is legally competent in this regard, to the action of a deaf-mute, who is not. R. Ovadia Yosef argues against this inference that the talmudic dictum refers to the case of two competent adults. No one who is fully competent in action and motivation can be co-opted by another to merge his action with the other’s will. However, one may indeed associate the neutral action of one deemed “unwitting” to the motivation of a competent adult, to render this intentionless – and hence, incomplete – action, complete, and thus valid.

30 Halitza, which allows for some degree of confirmation by means of the participant’s responses, may, under supervision by a competent adult, be deemed valid for the deaf-mute, though not for one who is mentally-disabled. Again, the former’s mental functioning being deemed more reliable than the latter’s, partial confirmation is sufficient. 31 Yehave Daat 1:14. 32 Here R. Ovadia Yosef disputes the view of R. Ahai Gaon (Sheiltot, Tzav, 76), who maintains that one does not fulfil the precept by eating matza kneaded by a deaf-mute, one who is mentally disabled, or a minor. 33 Mitzva 10. 34 BT Hagiga 20a.

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1.4. Sabbath boundaries Sabbath ambulation is restricted, keeping the Sabbath observer close to home, family, friends and neighbors. The limit is precisely defined: one may not go more than 2000 cubits (about 1 km) outside one’s home locale. Whether biblically or Rabbinically ordained,35 the injunction is textually anchored in God’s instruction to Moses regarding the Sabbath that: “abide ye every man in his place, let no man go out of his place on the seventh day” (Exod. 16:29).36 The size of one’s town is irrelevant; the restriction limits movement beyond its limits, but not within. For the sake of fulfilling a religious duty, such as attending a circumcision, the Sages allowed extension of the boundary by means of a formal procedure known as “mixing the boundaries” (eruv tehumim).37 Prior to the Sabbath, a new point of departure is fixed at the outer bounds of the primary limit, that is, at the 2000 cubit point, allowing the individual to go 2000 cubits beyond this point. The spot is marked by placing there food sufficient for two meals, symbolically “establishing residence” for this purpose.38 Establishing residence in this way calls for intention on the part of the individual defining the perimeters of the eruv. One may assign an agent to act on one’s behalf, provided the proposed agent is responsible, competent and in full control of his faculties. However, “if one establishes an eruv by the hand of a deaf-mute, a mentally disabled person or a minor. . . the eruv is not valid.”39 Because, as a rule, these individuals cannot serve as agents due to their presumed deficient mental functioning, they are not entrusted with declaring: “So-and-so’s residence is in this place.”40 They may, however, convey the materials for the eruv, that is, the food, provided that at the new “residence,” it is received by a competent agent. The Talmud teaches that the foods can also be conveyed by trained animals.41 The comparison between disabled persons and animals in this connection should not give offense, although taken out of context, it would undoubtedly be so perceived by the casual reader. The Talmud clearly distinguishes disabled persons from creatures elsewhere,42 and is here making a technical point about incompetence with respect to agency. Nevertheless, because relating to “deaf-mute,” “mentally disabled” and “animal” as abstract logical categories, useful though it may be to the legal scholar, is disturbing to the non-expert reader, who brings to the text

35 36 37 38 39 40 41 42

See Rashi on BT Shabat 34a s.v. beeruvei tehumin and BT Eruvin 46a and 51a. See Mishna Sota 5:3. BT Eruvin 82a; Code, Laws concerning the ‘Erub. 6:6. See Mishna Eruvin 4:9. Mishna Eruvin 3:2. Code, Laws concerning the ‘Erub 6:22; see Kehati on Mishna Eruvin 3:2. BT Eruvin 31b. BT Shabat 153b. And see above, Chapter 7, on benefitting from the non-obligated status of the disabled.

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ordinary associations, these categories should be clearly explained, to avoid unintended slights. 1.5. Disabled menstruants The law prohibits sexual relations during the wife’s menstrual period, some precautionary time before and for a week after.43 The laws of menstruation are also related to the now moot laws of purity and impurity. A woman married to a priest and entitled to partake of the heave offering had to be cautious not to do so during her menstrual period, as this would render the heave offering impure. In general, in the sacral realm, a menstruant could not touch any person or thing without causing impurity. Today, only the law against sexual relations with a menstruant (Lev. 20:18) is of practical halakhic import. A woman must know the dates of her menstrual period in order to alert her husband to abstain from coitus. In this regard, and also to ensure that sacral foods not become impure, the Mishna teaches that women must examine themselves meticulously. Special instructions govern the examination of certain disabled women: A woman who is a deaf-mute, mentally disabled, blind, or mentally unbalanced (nitrefa daata): if women of sound senses are available, they take care of them [i.e., examine them] so that such a woman may eat of the heave offering.44 Self-examination would be deemed insufficiently reliable to allow contact with sacral foods and resumption of marital relations.45 A conflicting tradition is reported regarding a known deaf-mute, who not only examined herself, but was such an expert that other women brought their examination cloths to her for consultation. The Talmud resolves this by assuming that, although the Mishna refers to her as a deaf-mute, the woman was only deaf, and hence presumed to be completely competent.46 In both the Babylonian Talmud and the Jerusalem, the Sages agree that “the blind woman does not belong in this Mishna.”47 Contrary to what is written in the Mishna, she is deemed competent concerning her mental faculties, and may

43 44 45 46 47

Lev. 12; 15:19–32; 20:18; Tractate Nida; Code, Laws concerning Forbidden Intercourse 4–11. Mishna Nida 2:1. Code, Laws concerning Forbidden Intercourse 8:15. BT Nida 13b. “Suma eina mishna,” BT loc cit. Epstein explains that the formula, eina mishna, is used by R. Johanan to emend the Mishna, see his Introduction to the Tannaitic Literature, 1957, p. 245. In the JT the phrase used is “the blind woman is not mentioned here” (ein kan suma).

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examine herself, requiring assistance from others only with respect to the visual assessment of the blood or its absence.48 Orthopedically-disabled women have a special problem in discharging the requirement of immersion in the ritualarium, the ritual pool (mikve). One must enter the pool, then immerse oneself completely, so that all parts of the body are in contact with the water without any physical obstruction. The physical manoeuvring this entails is often virtually impossible for some wheelchair-bound women. To overcome this problem, R. Yehiel Michel Stern designed a lift that mechanically lowers the woman using it into the water, satisfying the halakhic requirements for immersion, and enabling observant couples to enjoy a full marital relationship.49 The prohibition against conjugal relations during and for a week following, the wife’s menstrual period, is reinforced by a secondary ban on all physical contact. This has consequences for disabled women in need of practical assistance. Halakhic material surveyed by A.S. Abraham reveals two distinct attitudes. In the case of a woman with a paralyzed hand and leg who needs assistance in tying her shoelaces and in dressing, R.M. Bransdorfer allows the husband to assist, given the lack of an alternative and the fact that the husband would not actually be touching her body, but rather, her laces, belts, and so on.50 Because a woman is considered menstrually prohibited during childbirth, a related question arises: may a husband assist his wife during childbirth by holding her hand? In a hospital, where medical staff are present, there is no concern that this contact will lead to further touching. Yet given the meta-consideration of “not differentiating cases” (lo plug), Abraham suggests that it is prohibited, citing decisions of respected authorities.51 By contrast, he notes a remark from the Mordechai quoted by R. Moses Isserles concerning such stringent piety, to the effect that the Maharam of Rothenburg noted the view of R. Tuvia of Vienne, who considered the practice of those careful not to touch their indisposed menstruating wives to be foolish piety (hasidut shel shtut).52 The secondary prohibition of physical contact is intended to prevent actions that might lead to erotic touching, and is not pertinent to non-erotic contexts, such as medical examinations. The example of childbirth in a hospital

48 BT Nida 13b; JT Nida 7:2. 49 R. Stern had to contend with the prohibition against immersing in a container, or on a chair; the need to have the waters fully surround the body; the fact that the materials may not be susceptible to ritual defilement (his solution is use of plastics and synthetics); and the requirement that the ritual pool be fixed to the ground. He arrived at design solutions to each of these problems, and such a ritualarium is in use in the Baka neighborhood of Jerusalem. See Stern, 1986. 50 Kana Bashem, YD #92, cited in Nishmat Avraham, YD, p. 112. 51 Har Tzvi YD 2:274; Minhat Yitzhak 5:27 prohibits this even if both husband and wife wear gloves. R. Y. Neuwirth is reported by Abraham to agree to this severity. 52 Nishmat Avraham, YD p. 113, citing Isserles’s Darkhei Moshe, gloss on BT Shabat 1.

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seems an instance of exaggerated piety, especially as it is acknowledged that the reason is formal, not substantive. This position severely limits the scope for participation and active support in the birthing process, support intended to provide reassurance to the wife during the pain and drama of childbirth. Yet as we saw in a previous chapter, the Sabbath is violated by kindling lights to reassure women who are giving birth, even if the midwife has not requested light for medical reasons.53 If this is so, then why not allow supportive hand-holding in this context when there is, as noted above, only a formal reason for its prohibition? The slippery slope of concern for meticulous observance of one set of laws, in this case, those governing menstruation, unfortunately leads to a remiss attitude to the sensitivity to disability – whether chronic, or temporary, as in the case of childbirth – also mandated by the tradition.

2. Speech, hearing, and mobility aids The physical limitations of the disabled are being dramatically reduced by advances in biomedical engineering. Communication and ambulation devices that help overcome isolation and immobility in religious life, as in daily activities, are being designed at an unprecedented rate. Previously, the deaf could not really participate in synagogue services due to inability to follow the liturgy; the orthopedically disabled could not get to the synagogue; the mute could not recite prayers; the blind were dependent on others. Criteria that governed the application of the law under pre-modern conditions must now be applied to these new options through innovative reasoning, and the possibilities for maximizing participation of the disabled in religious life explored.

2.1. Aids for speech and hearing Liturgical precepts such as prayer, saying the Kadish and Kedusha, reading the Torah and Book of Esther, and non-liturgical precepts such as blowing the shofar, require hearing. Is hearing by means of artificial magnification considered equivalent to natural hearing? This question is pertinent not only to the hearing disabled, but even to those without a physical impairment who are functionally hearing-disabled, such as those in noisy synagogues, and those confined to hospital or home and unable to reach a synagogue for services. What is the status of recitations heard via microphone, radio, television, and telephone?

53 Shulhan Arukh OH 330, cited in Nishmat Avraham, OH, p. 224. Reassurance, or calming the mind ( yituvei daatei ) of the woman during delivery is seen there as a pertinent consideration.

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The principal talmudic text relevant to this question concerns the distinction between the original sound of a shofar and its echo: If one blows in a pit or a cistern or a barrel: if one can hear the sound of the shofar, he has performed his duty; if one hears the echo (kol havara), he has not performed his duty.54 One must hear an original and not a reproduced sound. Does this disqualification of echo-like reproductions apply to other precepts as well, and is there a distinction between recorded sound (CDs, audio tapes, video tapes) and live sound transmitted electronically? There are two views on these matters, one restrictive, the other lenient. The restrictive view argues that in disallowing echo-like reproductions, electronically-reproduced live voices are invalidated. The process of magnification involves reception of a voice, in the form of sound waves, electronic transformation of these sound waves into electrical waves, and their transformation, via amplifiers, into sound waves. What the audience hears are thus synthetic sounds, and not the original sounds. Why should a distinction be made between such live synthetic magnification, which is unacceptable, and the process by which sound waves are electronically stored, as on CDs, and later reproduced?55 Both are unacceptable. Only mechanically, that is, non-electronically magnified sound, like that issuing from a bullhorn, is valid, since here the device only channels and concentrates the original sound.56 Those who take this view apply it not just to the shofar, but for other hearing-related precepts: Minhat Aharon rejects the use of a microphone not only in radio broadcasting of the Megila reading, but even in a synagogue, since the audience is not hearing the voice of the reader but a synthetic reproduction. On the lenient view, sounds enhanced and reproduced electronically are not halakhically analogous to the echo, but rather, tantamount to the original voice of the individual producing the sound. R. Waldenburg adduces R. Moses Feinstein, on whose view an electronically-reproduced sound, because it is live, though not the original sound from the perspective of physics, is from the halakhic perspective equivalent to the original voice.57 Even ordinary hearing involves reception of sound waves that have travelled from the speaker to the hearer, rather than instantaneous perception. Yet though he champions this position in

54 Mishna Rosh Hashana 3:7, BT Rosh Hashana 27a. The Talmud makes it clear that this refers only to those outside the pit, who hear the echo alone, and not to those in the pit, who also hear the original sound. 55 R. Eliezer Waldenberg raises this conjecture in a responsum addressing use of a microphone to broadcast the Megila reading in a crowded synagogue, see Tzitz Eliezer 8:11. And see Levin, p. 148, citing Igrot Moshe EH 3:33. 56 Pnei Meivin OH 103, cited in Tzitz Eliezer 8:11. 57 Tzitz Eliezer 8:11 citing Igrot Moshe OH 2:108.

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principle, R. Moses Feinstein is leery of actually permitting it, admonishing that caution should be exercised in the introduction of innovations lest the public come to expect perfunctory dispensations for other new developments. Further, R. Waldenburg distinguishes the requirements of hearing the shofar from those of other precepts involving hearing; only with respect to the precept of the shofar is an echo invalidated. With other precepts, such as hearing the Megila, it suffices for the sound to emanate from a live person in a continuous manner.58 Waldenberg adduces the support of R. Tzvi Pesach Frank, who argues that the requirement that the sound be “uncluttered,” viz., echo-free, applies only to the shofar, and not to other precepts involving hearing, as long as the sound is live. Similarly, the Pnei Meivin, cited by Waldenberg, disqualifies telephone transmission only in the case of the shofar, considering it akin to hearing an echo, but not in the case of the Megila. He obligates the hearing disabled to fulfil the latter precept even if they can hear only by using an electronic device.59 R. Waldenberg adds that even regarding the precept of hearing the shofar it is not certain that battery-operated hearing aids are invalid – on the contrary, their use should be embraced as a means of imposing obligation on the hearing disabled. He cites an opinion that when there is no alternative (shaat hadehak) one may hear the shofar via telephone.60 2.2. Hearing aids on the Sabbath Hearing aids also raise questions as to Sabbath use. One issue is whether use is permissible despite the injunction against carrying objects in the public domain. If considered ornaments, and not therefore in violation of the prohibition, hearing aids can indeed be worn on the Sabbath.61 Though, from an electronic perspective, they resemble the microphone, use of which on the Sabbath is prohibited, the use of hearing aids on the Sabbath is justified. Shuchatowitz explains this as follows: The difference lies in the fact that the aid does not produce any loud sound audible to the public, is not used to accompany musical instruments or singing, and is not repairable by a non-professional, all unlike the standard microphone. The amplification itself, heard only in the ear

58 Tzitz Eliezer 8:11. R. Waldenberg adduces the support of R. Uziel, who takes issue with the stance of Minhat Aharon, citing Mishpetei Uziel, OH 34. 59 This is affirmed by Tendler and Rosner, 1991, p. 92. 60 Yerushat Pleita, part 10. 61 In general, ornaments are considered to be attire, and therefore, like attire, are considered to be body parts rather than extraneous objects. As such, their use is not in violation of the prohibition against carrying in the public domain. See Tendler and Rosner; R. Meir Wander, 1986, p. 66, note 61, reports this decision, issued by a R. Menashe Klein in 1977, opposing the stricter opinion of Har Tzvi. Levin, p. 149, recommends hearing aids attached to eye-glasses; Code, Laws concerning the Sabbath 14–19.

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of the wearer, involves no prohibited act. One may therefore speak directly to the aid wearer on Shabbos.62 He concludes that one may also adjust the volume, and provides instructions on how to deal with feedback (squealing), cautioning that the proper settings should be chosen before the advent of the Sabbath. 2.3. Artificial limbs or cane on the Sabbath and festivals The festivals are marked by restrictions on activities that, while not formally in violation of the day, are nonetheless considered to undermine the spirit of the holiday, because they are strongly associated with daily pursuits. The Tosefta rules that “the blind person may not go out with his staff ” on a festival, in conjunction with the ruling that “the shepherd may not go out with his leather bag.”63 This was considered offensive to the spirit of the holiday: staffs were associated with herding or similar weekday pursuits common in the days this ruling was pronounced. R. Simon dissents, arguing that the blind may go out with their staffs, and may even engage in other activities that were prohibited along with staffs, such as taking out chairs. Maimonides follows the strict view.64 But how are we to determine the permissibility of the use of a cane by one who is blind today, when there is no association with herding?65 Moreover, given the fact of automotive traffic, for example, white canes, which alert drivers to the blindness of their users, are essential if the blind are to avoid mishap. Another question is that of the use of artificial limbs or canes in public on the Sabbath. Carrying in public thoroughfares is prohibited on the Sabbath.66 Clothing and ornaments, as we noted regarding hearing aids, do not constitute a violation of this law. Nevertheless, certain kinds of ornaments are Rabbinically proscribed for fear they will be taken off and carried, changing their Sabbath status from permitted ornament to prohibited load.67

62 Shuchatowitz, “Use of Hearing Aid . . .,” note 1; he cites Igrot Moshe 3:55, Yabia Omer 1, OH 18, and other works. 63 Tosefta Yom Tov (Beitza) 3:17 (11); JT Beitza 4:5; BT Beitza 25b; Rashi ad loc. s.v. ein hasuma yotzei; Korban Haeida and Pnei Moshe ad loc. 64 Code, Laws concerning Repose on a Festival 5:3. 65 See Tosefta Kifeshuta, Yom Tov 3:17 (11), p. 988, which links this issue to that of muktze. R. Simon, in dissenting, denies that these are cases of muktze. Lieberman cites several variants, according to one of which, R. Simon “even (af ) permits the shepherd to lead the animals with a stick, and certainly permits one who is blind to go out with his staff.” In the printed editions of the Tosefta, however, the phrase “not even” (af ein) is used. 66 See Mishna Shabat 6, BT 57a–67a; Code, Laws concerning the Sabbath 19. 67 See Mishna Shabat 6 and Kehati’s introductory remarks on Mishna Shabat 6:1.

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The Talmud records a dispute concerning the permissibility, on a public thoroughfare on the Sabbath, of different kinds of artificial supports used by amputees and the lame: One who is stump-legged may go forth with his wooden stump (hakiteia yotze bakav shelo). This is R. Meir’s view, while R. Jose forbids it. . . . His supports (semukhot). . . one may go out therewith on the Sabbath. . . . His stool and supports (kise usemukhot). . . one may not go out with them on the Sabbath.68 There are two explanations for the first disagreement, that regarding the wooden stumps. R. Meir considers it a shoe, hence, part of the amputee’s attire. R. Jose does not consider it a shoe, assuming that the disabled person relies primarily on his canes, the stump serving to camouflage his missing limb.69 But if it is neither attire nor ornament, then, like other extraneous objects, it may not be carried on the Sabbath. Alternatively, some explain that even though R. Jose also considers it a shoe, that is, attire, he nonetheless prohibits it as a precaution against its being unfastened and carried. As to the “supports” of a double amputee who manoeuvers his body with his knees on two supports, the consensus is that he may go out with them on the Sabbath. These artificial limbs are considered to have the status of ornaments and are thus equivalent to shoes. R. Jose does not object here, since, as the amputee’s only supports, there is no possibility he will remove and carry them. Regarding the stool and supports, here again this appears to refer to the case of a double amputee. He has two means of manoeuvring: a low stool to which he is strapped and in which he can manoeuver himself by using his hands; and two stumps, artificial limbs, which he can also use to propel himself. Since, with the stool, he is not absolutely dependent on his stumps, he may come to carry them. Here, even R. Meir agrees that he may not go out with both the stumps and the stool on the Sabbath, but only with either the stool or the stumps.70 Rashi rejects this argument, suggesting instead that it is because sitting on the stool, his stumps, dangling beneath him, might fall off, and he might come to carry them. In this case, R. Meir agrees that a measure of preventive caution is in order. Since he may, according to all, use the stool, Tosafot infers the permissibility of a cane, which is, for a disabled person, equivalent to the stool described in the Mishna. The inference is based on a query regarding R. Jose’s concern in the case

68 Mishna Shabat 6:8. 69 This is Kehati’s understanding. Rashi, however, argues that he does not categorize as a shoe something not commonly thought of as such (on BT Yoma 78a s.v. rabi yosi oser). Tosafot on BT Shabat 65b s.v. hakiteia explains that he considers the stump neither shoe nor ornament. 70 This appears to be Rashi’s understanding of BT Shabat 66a s.v. veyotzim. Tosafot ad loc. states this explicitly.

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of the single amputee. That is, his concern that this individual may come to carry the stump. But would he not be immobilized upon taking off the stump? Tosafot thus infers that the case must be that of an amputee who also has a cane, by means of which he can manoeuver on one leg, holding the stump. R. Jose is silent on the cane, objecting only to the stump. This reading is supported by Rabbenu Nissim, who adds that R. Isaac the Elder heard Rabbenu Tam rule accordingly in an actual case and not only in theoretical discussion.71 Thus, an orthopedically-disabled person who is absolutely dependent on a cane for mobility, as a leaning device, may use it on the Sabbath, while one who is blind, considered not absolutely dependent upon his cane, may not use it even on festivals, despite the fact that the prohibition against carrying in the public domain pertains only to the Sabbath, and not to festivals. Nevertheless, if someone blind absolutely cannot move without it, he is permitted to use his cane, it in that case being considered part of his attire.72 Regarding the first case discussed in the passage, that of the single amputee, the Tosafists and the Ran state explicitly that the disagreement refers to a situation where the individual relies primarily on his cane, and not on his stump. They imply, but do not explicitly assert, that where he does not use a cane, so that the artificial limb is his primary means of locomotion, even R. Jose would agree that he may use his artificial leg. Tendler and Rosner, exemplifying halakhic imagination, argue that Jewish law comes to consider “mechanical aids that substitute for body parts” to be “part of the person.” They thus conclude: A disabled person who cannot walk unaided may go through a public thoroughfare on the Sabbath using a wheelchair, cane, crutches, or walker, even in the absence of an eruv . . .. but if an aid is used only to provide additional stability for someone who can walk without assistance, it is then considered as if the person were carrying the mechanical aid; its use would be prohibited on the Sabbath.73 Technological advances have make the development of a battery-operated wheelchair for Sabbath use within the realm of possibility. Such a device would make self-locomotion possible. Having studied many of the technical problems involved, Yair Moshe describes the project as of “great significance from the perspective of the individual’s overall sense that he can manage on his own.”74

71 Ran on the Rif s.v. hakiteia. Note that the Talmud and Code, Laws concerning the Sabbath 19:16 rule according to R. Jose. 72 Magen Avraham on Shulhan Arukh OH 301:18, cited in Tendler and Rosner, p. 91. They note, citing Igrot Moshe OH 1:45, that he may likewise be accompanied by his guide dog. See Astor, pp. 105–6. 73 Tendler and Rosner, p. 89. 74 Moshe, 1987, p. 37. Moshe explored ideas for devices that trigger the switching system indirectly. Indirect causation ( gerama) of the activities impermissible on the Sabbath is scripturally acceptable and only Rabbinically proscribed.

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3. Final remarks Much of the material examined here is characterized by subtle legal distinctions, such as that drawn by Pri Megadim between a deaf-mute’s writing a bill of divorce, qua agent for another, which is prohibited, and his doing so for himself, which is permissible, and that suggested by R. Ovadia Yosef between marshalling the intention of one who is competent to complement the action of one who is incompetent, which is acceptable, and the attempt to invoke the intention of someone competent to complement the act of someone equally competent, which is halakhically untenable. However, for all the subtle reasoning, here, in contrast to seemingly-inexplicable disqualifications from the preparations for the purification rites involving the red heifer, disqualification from observance of preparatory activities is generally related to the functional abilities required to carry out the activities in question. With respect to broadening inclusion of the disabled, in keeping with their enhanced functioning due to education and technological aids, however, ongoing reinterpretation of the sources proceeds at its own pace. One area where empirical assessment of actual functioning may be appropriate is that of the eligibility of the blind to carry out ritual slaughter. In a case concerning the writing of phylactery scrolls, however, after arriving at an innovative conclusion in the realm of the theoretical halakha, and even after acting on that innovative insight in the case at hand, the decisor was nonetheless reluctant to press his view beyond that case. Such conservatism is not atypical. Instances of bold creativity are sometimes accompanied by qualifications limiting the application of the novel conception. It often seems that the decisor loses his nerve upon realizing that his theoretical analysis has far-ranging or controversial implications. Nevertheless, such a partial decision may yet serve a later decisor as the basis for a practical ruling. Where opting for the stricter position may lead to inconvenience and even suffering for the disabled, yet there is scope for decision-making latitude, the lessonerous option is not only preferable, but should be actively endorsed. There are, indeed, legitimate reasons for halakhic conservatism, but such programmatic imperatives should not be rigidly invoked where the price is further strain on the disabled. The concept of foolish piety (hasidut shel shtut ), cited above regarding such obdurateness concerning assistance to incapacitated menstruants, should be appealed to if needed to allay such exaggerated timidity.

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Having examined the halakhic discourse on disability, we can now summarize the main lines of argument that have been presented, draw conclusions about the relationship of Jewish law to the most vulnerable of those under its jurisdiction, and identify areas that invite further halakhic attention. Clearly, many of these issues are controversial, and discussion of them is ongoing. But this should not deter implementation of already-accepted proposals that remain theoretical only for lack of will. Ultimately, the chief justification for the reflective enterprise is the covenantal obligation to act: “Not study, but action is fundamental.”1 Jewish tradition, and the halakhic sources, stress that all human beings, regardless of their physical or intellectual endowments, are created in the image of God. This attribution of likeness to God is the biblical preamble to covenantal involvement of Jew and non-Jew alike, without regard to any particular capacity, even consciousness. Just as Adam and Noah were commanded by God, so every human being must revere God and observe His commandments. Observance of the 613 precepts, however, is imposed only on Jews. The conception of the individual underlying precept-observance is that of the moral agent who understands and willingly makes this commitment. Taking on religious obligation constitutes an affirmation of one’s freedom and moral capacity, and hence, confers dignity on the individual. Here we are confronted with a disturbing dilemma: although the tradition conceives of human worth as universal and absolute, esteem, as a function of the capacity to bear responsibility, is nonetheless conditionalized. Moral responsibility encompasses personal responsibility for transforming reality by shouldering social burdens and mitigating adversity, since “All Israel is interdependent” (kol yisrael arevim ze laze). Despite this norm, the phenomenon of revulsion for the disabled and deformed, deriving from the defensive projections of the able-bodied, is acknowledged by the tradition. Indeed, the law itself reflects the dichotomy between the sensitivity mandated on the normative level, and the

1 Mishna Avot 1:17. Cf. BT Kidushin 40b: “Study is greater for study leads to practice.”

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distaste and distancing often manifested in practice: on the one hand, it seeks to rectify the natural disadvantage of the disabled, by enjoining the able-bodied to be compassionate and helpful to the disabled. Yet the law also acknowledges limits in tending to the needs of the disabled, stipulating that the able-bodied must balance their capacities for caring against these needs. It may be useful to view the liturgy in the same light, that is, as reflecting the dichotomy between the normative attitude to the disabled informing the halakhic sources – compassion – and the instinctive unease often experienced in practice. While it is often possible, even plausible, to interpret the liturgical references to disability in light of the former, it is undeniable that the latter attitude can also be detected. As noted, the law’s relation to the disabled is expressed in the degree of obligation it imposes upon them: global exemption, disqualification from observance in specific cases, or empowerment to take on observance. As in other areas of the halakha, the specific laws governing these matters are subject to a continuing process of dialogue and interpretation. However, the scope for such interpretation is particularly broad in the case of disability, due to the fact that the functional abilities that, in most instances, demarcate the degree of obligation, have been markedly enhanced over the past century and a half, and continue to be enhanced on an ongoing basis. This is clearly illustrated by the case of the deaf-mute. Virtually unable to interact with others verbally prior to the nineteenth century, deaf-mutes are today routinely taught to communicate vocally. Such empirical developments give renewed impetus to the halakhic discourse and call for reevaluation of the degree of obligation of deaf-mutes, exemplifying the challenge posed to halakhic culture by its encounter with modern technology. Where Jewish law addresses the disabled in the realm of ritual precepts, we find a variety of reasons for exclusion of the disabled from observance. To varying extents, interpretative strategies can nonetheless be harnessed to allow for inclusive understandings of such rulings, and we have seen some authorities go to remarkable lengths to enable inclusion. I believe such efforts demonstrate that the halakha is indeed striving to express the tradition’s moral imperatives, and to implement them in small but practicable steps that will not be misconstrued as attempting to undermine the authority of the law and the canons of halakhic decision-making, fully aware that these small steps do not exhaust morality. In addition to measuring the degree of obligation imposed upon them, another means of gauging the degree of respect accorded the disabled is to examine whether the law requires that they be treated as the non-disabled are treated, or whether their differential status regarding precept-observance is advanced in order to sanction a lesser, or at any rate different, degree of elemental respect. One area I consider acutely problematic and in need of compassionate reassessment has to do with laws that sanction exploitation of the exempt status, with respect to observance, of the mentally disabled, in order to enhance the Sabbath observance of the non-disabled.

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1. Dialectical tendencies Jewish law in general is characterized by dialectical tendencies.2 A number of such tendencies are clearly felt in the laws that pertain to the disabled. The laws of charity reflect the tension between compassion and pragmatism, the concern that sensitivity to weakness not be exaggerated to the point of undue paternalism that would ultimately deter the dependents from bearing any responsibility. Accordingly, the law directs the community to reject the ideal of total responsiveness to the unique circumstances of each individual in favor of a standard, often minimal response to generalized needs. Here, then, is a dialectical tension between ideal caring and realistic restraint. Another dialectical issue arises out of the high regard for responsibility and competence in the halakhic culture. While bonding the members of the community, it devalues those who cannot participate fully. Perusal of the sources reveals that the latter phenomenon is clearly discernible in a variety of contexts. Yet attempts to overcome this distancing are also present in abundance, as befits a culture in which compassion for the vulnerable and the weak is of the essence. This dialectic is evident in the balancing of exemption and obligation adduced in relation to specific precepts. Even if driven by compassion, however, by relieving the disabled of responsibilities that the able-bodied must bear, exemptions contribute to the perception of the disabled as of lesser status than able-bodied members of society. This dynamic prevents them from achieving dignity in a culture that gauges status by precept-observance. There is, then, a clash between the tradition’s egalitarian impulse and its intellectual predilection. One might conclude that global halakhic exemption is tantamount to covenantal dismissal, but this is not so. Consider the case of someone with severe cognitive dysfunction. Though lacking the capacity to function halakhically, he is nevertheless deemed covenantally involved. The Sabbath must be violated to save his life, and such an individual is deemed sufficiently a Jew to fulfil his parents’ obligation to procreate. We noted that R. Moses Feinstein distinguishes between the halakhic status of one who is disabled, who is exempt from precept-observance, and that of the Gentile. Even when devoid of all obligation, the Jew is still considered a ben mitzva (bound by commandedness) or ben kritut (bound by the covenant). It is clear, then, that the idea that covenant is exhausted by precept observance3 is incorrect, and that covenantal engagement extends beyond “what the Lord doth require of thee” (Mic. 6:8).

2 See Soloveitchik, 1974, note 42, p. 129. 3 See Soloveitchik, 1983, p. 99.

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2. Relationship of Jewish law on disability to scientific advances The relationship of the law to new scientific knowledge that contradicts assumptions made in the halakha, is another issue with critical consequences for the disabled. R. Moses Schreiber presents a conservative stance, as opposed to the more open and receptive approach exemplified by R. Azriel Hildesheimer. The Hatam Sofer comments on whether someone with a surgically-removed diseased testicle has the status of petzua daka (Deut. 23:2). This has consequences regarding his right to marry or perform halitza, since he cannot generate seed. He cites the view of R. Johanan b. Beroka in the Jerusalem Talmud that “whoever has only one testicle cannot procreate”4 and the testimony of Rabbenu Tam, in his Sefer Hayashar, regarding males who despite having had one testicle removed, nevertheless had children, apparently theirs. Rabbenu Tam argues that regardless of R. Johanan b. Beroka’s ruling one cannot infer that such children are mamzerim, thereby implying that empirical observation overrides tradition. R. Moses Schreiber protests: The matter [Rabbenu Tam’s comment] is perplexing. Since the Jerusalem Talmud said that he cannot have children, what matters the testimony of Rabbenu Tam, “indeed we have seen the like in our time”? It is certain that according to the Rambam and his school if one testicle is removed by human action, he is invalidated [for halitza and marriage].5 So it is a tradition received from Sinai that he cannot procreate. Therefore, all the testimonies [to the contrary] cannot budge even the tiniest detail of our Torah and our true tradition. Had there been any medical possibility for healing his wound, Moses, may he rest in peace, would not have passed over it in silence. The same holds regarding animals ruled to be terefa [mortally wounded animals that have not yet succumbed]. Even should they multiply like the stars, we would not abandon our true received tradition. As for Rabbenu Tam, he explained the [talmudic] discussion [regarding the man with the removed testicle] as assuming that if it is removed by man he is fit. Here Moses did not comment as to whether he can or cannot procreate, this belonging to the realm of medicine. Perhaps in the days of the talmudic Sages, doctors did not know how to remove one testicle so as to leave his capacity to procreate intact, but the present generation has progressed in this.6

4 Hatam Sofer, EH 1, #17. 5 In the Talmud there is discussion of whether the disqualification of petzua daka relates to an act of heaven or man. Maimonides holds the latter view. 6 Hatam Sofer, EH 1, #17.

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By suggesting that they were following different views on the definition of petzua daka he resolves the contradiction between the Talmud and Rabbenu Tam, co-opting the latter to his view on the immutability of the Torah. R. Hildesheimer notes that this view is widespread, citing a passage by R. Moses Arye Bamburger of Kissingen: Know that the Sages pondered this question in great depth keeping in mind that R. Eleazar was in doubt whether a deaf-mute is feeble-minded or not.7 Surely his reasons were based on the fundamentals of human psychology (hokhmat hanefesh). Nevertheless, the Sages, whose rulings are obviously based on the science of the mind as well, disagree with R. Eleazar, and the law is in accord with their view.8 R. Engel of Sassin, whom Hildesheimer also cites, adducing Rashi,9 similarly argues that one may not undermine the tradition of the Sages, asserting that the status of the heresh is biblical law given to Moses at Sinai and incontrovertible by any subsequent findings to the contrary. R. Hildesheimer responds that the sources relate to the reality known to the Sages, that is, a situation where deafmutes were indeed mentally disabled. The new insight that they have mental capacity that can be developed effectively does not contradict the Sages’ understanding: they can be viewed as having recovered – even Maimonides ruled that recovered deaf-mutes regain their halakhic standing, and recall the ingenious argument of R. Haim Halberstamm of Sanz, cited in Chapter 6. Aware that it invites criticism from colleagues with different outlooks, R. Azriel Hildesheimer defends his position, demonstrating how a master halakhist navigates the intricate byways of halakhic logic, making it possible to preserve the religious system in such a way that the empirical facts strengthen rather than undermine its categorizations. He integrates new insights into the system, offering a logic for contextualizing assessments assumed by the received tradition, without denigrating the Sages whose judgments are limited to their realities. His inclusion of findings by non-Jewish specialists in the body of his responsum demonstrates the halakhic concern with establishing the factual truth, and exemplifies the application of traditional value judgments in the context of new information without undermining the authority of the halakhic system. Responding substantively and in detail to every relevant point, his responsum reveals both subtlety and commitment. It is interesting to compare Hildesheimer’s responsum with the earlier responsum by R. Judah Leibush, which makes the disclaimer that his “radical” responsum is to

7 BT Jebamot 113a. 8 Quoted in Azriel, 2, EH, HM and Addenda, 58. 9 BT Hagiga 2b s.v. heresh.

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be seen as only theoretical and not as a practical ruling, due to his limited comprehension.10 Written in 1864, it seeks to neutralize reflexive opposition to new ways of thinking – traditionally, there is reluctance to upset custom, though theoretical discussion is welcomed. In a vigorous and thorough defense against the critical remarks of his revered teacher R. Haim Halberstamm, Head of the Rabbinical Court of Sanz, R. Leibush belies his disclaimer, making his sense of urgency and passionate empathy clear. In his prefatory remarks, for example, he urges: With all this [reluctance to publish his halakhic views], now is not the time to be still. . . . It is imperative, especially as the questioning contemporary scholars [are like foxes] lurking about to grasp the Torah’s view, [to ascertain] if there is a remedy for these contemporary deaf-mutes who are taught reading, language, and speaking in the vernacular, regarding prayer, marriage and divorce, halitza, and ritual slaughter.11 This is the voice of a halakhist who wants to change things, not just engage in theoretical discussion. There is, then, a range of options for halakhists of different bents. Those for whom minimizing the exclusion of the disabled is a priority are on sound halakhic ground, as are those whose primary concern is the literal continuity of halakhic concepts. Focusing on the tradition’s ethical imperatives, creative halakhists balance their interpretations between the need for conservation and the need for innovation.

3. Halakhic self-critique Confronting critical inner dissonance, the halakhic culture does not make radical moves. It corrects in piecemeal fashion within the familiar categories of interpretation, extending the application of halakha but essentially limiting itself to welldefined boundaries. It does not ask why any individual should be disqualified at all, or why engagement in precept-observance should not be a matter of personal choice. The collective character of the culture ensures that the criteria of observance are not personal and individualistic, but mediated by community. The community, having stood together at Sinai, construes itself as bearing collective responsibility for interpreting and administering the parameters of observance. Those with conservative leanings, like R. Moses Arye Bamburger of Kissingen and R. Moses Leib Engel of Sassin, cling to classical understandings, enlisting the authority of such incontrovertible principles as “law given to Moses at Sinai” to justify their positions. Innovative halakhists such as Rabbis Leibush, Halberstamm and Hildesheimer venture beyond such conservatism to reassess the

10 “Heaven forbid that I rely in these matters on my weak mind,” Melekhet Heresh, p. 11a. 11 Ibid., p. 2b.

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position of the law in the light of new knowledge. Where such reassessment yields new rulings, these judgments are seen, not as radical reforms, but as more correctly implementing the intent of the law. R. Azriel Hildesheimer perceives his judgment as in full harmony with the tradition. The earlier assessments were appropriate to the earlier reality, but failed to address the new situation, a halakhically undesirable state of affairs rectified by his review. In co-opting judgments of the past, as do the conservative authorities, the innovators maintain the continuity of the tradition, allowing it to adjust itself to take advantage of scientific knowledge. By rendering the cases different without challenging the validity of the basic criteria, these criteria retain their authority. This construal, which denies that a radical change in the tradition has occurred, encourages its acceptance by conservatives. Traditionalists may allow for drastic readjustment precisely because this readjustment is not identified as undermining or threatening, but rather, as fortifying, the existing legal tradition. This approach differs significantly from R. David Feldman’s call for a break with the past. He calls, for example, for a new vocabulary to describe the hearing disabled. He speaks of the need to “sever the nexus” and “break the connection,” and appeals to the “revolutionary strides that have been made.”12 His impatience with the tradition’s conservative tendencies, will, sadly, likely ensure that his arguments do not get the attentive consideration they merit. Creation of new legal categories commensurate with the “revolutionary strides” that have occurred in technique may indeed be needed, but calling attention to the disparity between the law and the “new” reality in this adversarial way invites vigorous defense of the halakhic status quo against influences perceived as alien. My own position is that further involvement of the disabled in covenantal action does not defy the tradition, but rather, epitomizes it. R. Hildesheimer’s approach, which acknowledges and harnesses the conservative temperament of the legal establishment, may well be more efficacious. Expanding the application of existing halakhic options may allow for more progress toward changing the real inclusion of the disabled than will revolutionary rhetoric. The insensitivity, noted by Feldman, in the lumping together of the “deaf-mute, mentally disabled, and minor” may be better addressed through interpretations based on later commentary and responsa than by the uprooting of texts. Texts that are embodied within the sacred literature cannot be eliminated; they can only be surrounded by a sea of commentary.13 The very presence of texts on the disabled, even if not advocating full inclusion, is of benefit to the disabled. They are not passed over in silence; a discussion is on record, inviting further interpretation.14 But discussion must not be the last word.

12 D. Feldman, p. 23. 13 See BT Yoma 69a, on the reinterpretation of religious categories by Ezra the Scribe, sustaining them but investing them with new meanings. 14 I am indebted to Marcel Poorthuis for this observation.

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The range of halakhic self-understandings is thus striking. Those who take a non-confrontational approach, relating developing issues to the existing law and seeking redress within its “eternal” conceptions, have ample room to work for solutions within these parameters. In light of the dignity of all human life, the halakha is carefully reexamined for options that may have been overlooked in different contexts. Even those who view the halakhic prescription regarding the disabled as essentially correct can nonetheless seek ways to reinclude those who have been excluded due to halakhic complacency. Another possible strategy is to extend the involvement of the disabled in ways not previously addressed by the law, taking care to critique, not the law itself, but its limited application. Paradoxically, tackling new challenges within the halakhic realm requires greater knowledge of the law than merely preserving the old. It entails going to the law’s roots, to differentiate them from extraneous accretions. To illustrate a hypothetical paradigm shift, consider reading the Torah via Braille texts. Defining Torah reading as visual reading from a scroll disqualifies those who are visually disabled. Is it not also possible to conceive of it as comprehending tactile reading? Is tactile apperception not akin to visual reading, since words are “picked out” from the scroll? A distinguished student of the subject notes that recitation from memory, mental reflection, speech, writing, and nodding with the head are all relevant in various areas of the halakha, and reflects that perhaps Braille reading merits consideration in this context.15 In light of the new development of Braille, could we not apply the classical conception of the Torah’s being given to each individual according to his capacity,16 to sanction tactile Torah accessibility for the blind, an option that could not have existed earlier?17 We saw such reempowerment of deaf mutes through the development of new speech techniques. Advances in the technological aids used by the physically disabled are incorporated in just such ways. A precept that involves “remembering” through reading may illuminate this. The precept of remembering Amalek is traditionally interpreted as sense-specific: it must be carried out verbally. Might it be possible, for the sake of those with verbal impairments, to broaden the precept’s field of implementation to encompass other senses? A radical alternative to such conservative analogizing involves rethinking what is meant by reading. Rather than subject tactile texts to the criteria relevant in the case of visual texts, as Levin does, they would be addressed as an entirely new phenomenon. An analogous plea is made with respect to the deaf, viz., that both “oralists and finger spellers” be included in the regular hearing prayer quorum

15 Levin, p. 104. Since it involves bodily action, touching, it resembles a physical more than a mental meditative act. Would a benediction, ordinarily recited when the Torah is read, but not when it is reflected upon, be in order? 16 Pesikat de-Rabbi Kahana, Bahodesh hashlishi (cited by Dishon, p. 86). 17 In this connection M. Devere ( personal communication) cites Ezra’s resetting of the Torah in new letters, from another language.

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and that they be called to read the Torah in hearing synagogues on the grounds that “we can no longer wait for a time when God will unstop the ears of the deaf.”18 Rather than insist that the deaf adapt to conventional hearing standards, we are called upon to change our construal of the process of communication. The possibility of legitimizing soundless prayer that would reinforce the possibilities of participation by the deaf or mutes finds expression in Joseph Caro’s willingness, despite the requirement that the Shema be enunciated even when one cannot hear it, to validate a meditated and unvocalized recitation by one who is ill. R. Moses Isserles backs this up even ab initio, where the physical environs are not minimally clean.19 Shuchatowitz explored possibilities for including the hearing and speaking disabled by exploiting small interpretive lacunae in the received halakha without rocking the halakhic boat. He did not, however, explore new ways of construing of prayer from a perspective that is not a corollary of the capacities of the ablebodied; nor did Rabbis D. Feldman and E. Goldstein. This would necessitate a significant paradigm shift – construing prayer and all the liturgical observances from the perspective of the silent world of the deaf, perhaps calling for signing or dramatization. Such attention to the perceptual experience of the disabled calls to mind R. Akiba’s depiction of the revelation at Sinai: “they saw what was audible and they heard what was visual.”20 I would like to think that in some way this teaching can be understood as compatible with, or as an inspiration for, this option of moving from one perceptual medium to another on the basis of a possible underlying isomorphism.21 The lack of analogs in the experiences of the able-bodied should not diminish the significance of these other modalities of experiencing and communicating. For the time being this is all, of course, in the realm of constructive speculation.

18 Schwartz, p. 63. 19 Shulhan Arukh OH 62:4. R. Jehiel Epstein, Arukh Hashulhan OH 62:6–7, maintaining that silent meditation does not truly constitute recitation of the Shema, asserts that this ruling was made only so that the mute person would not be seen as excluded. 20 Mekhilta, Bahodesh, Yitro, 9 (Friedman p. 71a, Horowitz p. 235). Lauterbach (vol. 1, p. 266). R. Akiba’s description of sound perceived visually as well as audibly, and the visible made audible as well as visible, stresses heightened perception of the deaf and blind. R. Ishmael, by contrast, holds that the visual was only seen and the audible was only heard. R. Akiba suggests that what ordinarily is experienced in one perceptual modality was equivalently experienced in another. Lightning, ordinarily a visual experience, was also audible. R. Akiba cannot merely mean that paralleling the lightning there was thunder, since this was present in any event. He must mean that the boundaries of perception were miraculously transcended. 21 Developments in cognitive science present avenues for speculation in this regard. For example, Oliver Sacks has suggested that since the deep structure of language “has an essentially abstract or mathematical nature, it could in principle, be mapped equally well onto the surface structure of a sign language, a touch language, a smell language, whatever” ( p. 80, note 25).

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The continuum of approaches to innovation, though of a general nature, and hence evidenced on all halakhic matters, has special consequences for the disabled, who, it must not be forgotten, are suffering on an ongoing basis. Allowing theoretical deliberations on disability issues to take the usual course of protracted debate, defense of the halakhic status quo, and severe scrutiny of innovative interpretations, must be balanced against the ethical imperatives of compassion and dignity. The familiar inertia of the kind of traditional mind that exhibits automatic resistance to and anxious suspicion of change itself lessens the possibility of change. Where legitimate options exist on a theoretical level, this conservatism must be overcome so that new ideas can be utilized to alleviate the plight of the disabled. Exploiting electronic advancements in voice enhancement, for example, can pave new ways for the hearing disabled to participate. We saw that by construing electronic reproduction as equivalent to speech, those with hearing disabilities can be involved in Megila reading. R. Feinstein’s analysis was adduced by R. Waldenberg to this end, yet we saw that though in principle supporting this analysis, R. Feinstein nonetheless felt that one must be wary of permitting new things lest the public will come to expect permissive dispensations in other areas. But what is wrong with such expectations? He must mean that people will come to expect similar dispensations where they are not warranted. This implies that the public is not to be trusted to distinguish between warranted and unwarranted dispensations, and hence must unquestioningly accept even stringent rulings that could have been more lenient. This undermines the community’s struggle to maintain its loyalty to the law.22 Do those who share such anxieties about innovation not consider that this anxious conservatism also leads to abandonment of the halakhic enterprise by some, perhaps many, of the fold, who question the reasonableness of such stringencies?23 More importantly, it impedes amelioration of the suffering of the disabled. The disabled should not be made to wait, lest they “cry unto the Lord against thee, and it be sin in thee” (Deut. 15:9).

4. The dignity of obligation One may object that all this halakhic maneuvering is inappropriate to the reality of disablement. Why should someone with a disability need finely-argued

22 The same kind of conservatism is displayed by R. Samuel Landau in Shivat Tzion #4. He breaks new ground in holding the deaf-mute, despite his disability and exemption, to nevertheless be fully covenantal in terms of the interdependence of obligation, in a case involving the writing of phylactery scrolls. Yet he disappointingly restricts his ruling, validating only the phylactery scrolls already written by the deaf-mute, and not recommending that the practice continue. He backs off, because, as he states, his reasoning is based upon “inquiry and conjectures,” and not upon a long chain of precedents. 23 See Genesis Rabbah 19:3 (on Gen. 3:3) for the view that exaggerating stringencies may reinforce license.

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dispensations? Is coping with disability not sufficient? I have argued throughout that the obligation to observe the precepts is not a burden, but an empowering privilege. Thus it is indeed appropriate that there is no maudlin pleading on behalf of the disabled, arguing that they be exempted en masse and in principle from precept-observance, that it is too great a “burden.” The welter of halakhic detail that delimits the degrees of eligibility for the various precepts clearly attests to the fact that Jewish law is not inclined to patronize and mollycoddle those with disabilities. Disability per se is not grounds for being considered exempt from observance, but rather, exemption must be justified on the basis of rigorous legal argument, without undue emphasis on emotional and empathetic considerations. While there are some blanket judgments over whole classes of people – for example, the blind, on certain views, the mentally disabled, and the deaf and mute – obligation is generally determined on the basis of functional considerations, and exemptions are revoked where functioning is deemed recovered. In some cases exemptions can be traced to paternalistic, though genuine, feelings of compassion. Yet a greater compassion is that expressed in conferring dignity through imposition of the halakhic obligations that are normative for others. The disabled are expected to shoulder these covenantal responsibilities, unless exempted by the principles that govern all halakhic determinations. Nonetheless, consideration for the dignity, ease and comfort of the disabled is not, we saw, an irrelevant element in conferring dispensations, as illustrated by the amputee’s use of a cane on the Sabbath, or the Sabbath use of a hearing aid: There is no greater [issue] of human dignity than the prevention of the humiliation to one who is deaf of not being able to hear those addressing him. It is hard to describe the shame, embarrassment and discomfort caused him in his social intercourse with people and in the synagogue, when he is isolated, cannot attend to what is going on, and cannot respond to what is asked of him . . .. In addition to his humiliation, there is also the great distress entailed in the loss of communal prayer, hearing the Torah read, responses to the Kaddish and Kedusha, etc. Therefore, it is better to permit the carrying of that which is only prohibited Rabbinically for the sake of this great human dignity, in permitting the deaf person to carry a hearing aid.24 The suggestion that the deaf avoid humiliation by not mixing with others is rejected, for “there is no greater travail than this.” This willingness to bend Rabbinic proscriptions for the sake of overcoming isolation is not universal, exemplified by a ruling against allowing one who is blind to “use a tape recorder or radio on the Sabbath even if turned on before the Sabbath, because it violated

24 Moshe, p. 41, citing Tosafot on BT Shabat 50b, s.v. bishvil.

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that rabbinic edict of creating a sound or causing a sound to be heard.”25 The authorities who so rule are well aware of the painful consequences of isolation for the blind individual, as they encourage able-bodied persons to visit “to help him overcome his loneliness and seclusion” on the Sabbath, “so that the absence of the auditory stimuli from the radio or tapes not cause him to become depressed.” Since they well know that for the sake of human dignity, Rabbinic ordinances may be circumvented, this severity can best be explained by citing different halakhic priorities – the loss of human dignity not being the first priority, apparently.

5. Fathoming the dissonance We come back, finally, to the stark discrepancy between expectation and reality in society’s treatment of the disabled; between the official ideology of compassion in Jewish law and the existence of a degree of neglect, even rejection. As we saw, denial, fear and guilt are among the factors that contribute to such rejection. The able-bodied escape these feelings at the expense of their own ethical commitment and the increased suffering of the neglected disabled. Often, they distance themselves from the disabled, a tendency evidenced by the biblical injunction against avoiding involvement by failing to notice another’s lost or injured animal (Deut. 22:1–4). Literal readings of the Bible and Rabbinic sources associate disability with sin and punishment, also contributing to neglect and rejection by the traditional community. Disability is perceived as punishment for prior sin, generating guilt and shame that is experienced by both the disabled and their families. R. Ovadia Yosef, addressing this, notes that Rabbinic statements linking sin and disability can be interpreted metaphorically, and that it is the way of the Sages to exaggerate regarding the consequences of sin for hortatory purposes.26 Sadly, this sophisticated understanding, which objectively neutralizes literal linkages between disability and sin, runs counter to the deep fears and guilts most people have regarding their sins. Not surprisingly, avoidance of the disabled is difficult to uproot, as their relegation to the periphery allows superficial relief from the burden of guilt. Earlier I posed the question of the dissonance between the redemption from Egypt and the covenant at Sinai. The God of Exodus welcomed the disabled in a way that the God of Sinai could not. We are now in a position to understand the significance of this dissonance. While the same God is the ground of the redemptive and covenantal experiences, the role into which man is cast is not the same in both contexts. To merit redemption, it is sufficient to have suffered.27 Suffering is not a stigma, but a badge of entitlement. The blind, the lame, the

25 Tendler and Rosner, p. 91, based on Igrot Moshe, OH 3:55 and 4:84. 26 Yabia Omer, 1, OH 28, citing the Ribash. 27 The view of Numbers Rabbah 7:1.

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deaf, the mute, and the mentally disabled are exemplary instruments for the redemption by divine grace, hesed, underlying the Exodus event. The Sinai covenant, by contrast, is most appropriate to whole-bodied people. That which is irrelevant in meriting redemption – a reasonable degree of competence and understanding – is indispensable for assuming the yoke of covenant. To underscore the point that covenant at Sinai necessitates competent partnership, R. Tanhuma labors to prove, disability by disability, that those who stood at Sinai were fully recovered from their impairments, rendering them capable of receiving the Torah with the dignity of mental and physical whole-bodiedness. The halakhic culture celebrates competence, wherein God’s human covenantal partner is by human standards, capable of “carrying his own weight,” thereby acquiring a certain kind of dignity.28 Whole-bodiedness does not imply moral or rational perfection,29 but is a condition for realizing the highest potential of human achievement. Therefore it is to able-bodiedness that the norms for complete covenantal participation are matched. In this culture, capability is highly prized, and consequently, though not intentionally, disability devalued. It is thus reasonable that the law posit, minimum criteria for fulfilling halakhic functions, exempting or excluding those unable to meet these requirements. To be critical of this premise, to seek its abrogation, is to repudiate the very heart of the tradition. Thus this study has in essence traced the impact of the fact that halakhic culture is premised on competency. Given this fact, we have inquired into its flexibility, into the extent to which it is able to moderate its demands to include, by obligation or otherwise, even those not minimally competent. We have asked, how does the law relate to those unable to meet its demands?

6. Tikun olam Another kind of paradigm shift that seems warranted concerns distribution of the burden of disability. To overcome exclusion a society must rethink its relationship to differences among its members. Sharing disability requires thinking of society as an organic unity, and of its members as connected to one another beyond the limits of individualistic Western society. The notion of interdependence, arevut, captures this more holistic way of linking members within a society so that all have a stake in lessening the distancing of the disabled. The community must be energized to actualize the theoretical halakhic possibilities for maximizing inclusion of the disabled. Some changes can be implemented even without having resolved all the legal dilemmas, by acting on the ethical imperatives of the halakha, for which there is a broad consensus. This involves the

28 Soloveitchik (1965, p. 82) speaks of the weightiness (koved ) of dignity (kavod ). 29 See BT Shabat 88b on the irrelevance of Torah to the already perfect angels and its eminent suitability for imperfect man. The centrality of repentance underlines the acceptance by the halakha of moral failure and the need for rehabilitation.

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undoing of certain communal habits, the shaking up of which, no matter how minimal, is always perceived as a radical enterprise. It cannot be denied, however, that many problems faced by the disabled result from lack of implementation rather than from the lack of a theoretical base to justify solutions. There is much that can be addressed without having to challenge the halakhic consensus at all. We must resolve merely to apply that which the halakha already affirms in principle. “The Creator, as it were, impaired reality in order that mortal man could repair its flaws and perfect it.”30 I will now mention some areas where improvement of the plight of the disabled, tikun olam, is eminently feasible: “repairing the reality” is “not in heaven . . .. Neither is it beyond the sea” (Deut. 30:11–12).

6.1. Overcoming stereotyping The uniqueness of each person implies not making judgments about the other “unless you have stood in his place.”31 The Talmud enjoins us not to think in terms of stereotypes: “the king of kings stamped every man with the seal of the first person, yet none is identical with the other.”32 It should be considered a priority to overcome a popular stereotype of the disabled as parasitic, taking without giving. Negative stereotyping must be actively extinguished, both by making the disabled more visible and through education, allowing them to be judged as individuals and not on the basis of disability.33 Disability awareness can be fostered by including the disabled in communal activities, religious and social, thereby demonstrating to children that “all Israel is responsible one for the other.”34 Generalizations such as “the blind are as the dead,”35 contribute to stereotyping and can be overcome by encounters with very much alive and creative blind people. Encountering real persons with disabilities who, like able-bodied people, struggle to overcome their limitations while contributing through their work and activities, is the antidote to abstract generalizations about a feared community. It is also imperative to dethrone debilitating conceptions that nurture stereotypes. A no-fault perspective on disability mandates the formulation of alternate theological understandings and not the divesting of religious commitment. In affirming the spirituality and worth of the disabled, it has been stressed that the halakha exempts the disabled not only from the obligation to perform certain percepts but also from the guilt that they might feel due to this situation.36

30 Soloveitchik, 1983, p. 101. 31 Mishna Avot 2:4, and see 4:3, Ben Azai’s teaching that “one should not degrade anyone nor dismiss any thing, as there is no one who has not his hour.” 32 Mishna Sanhedrin 4:5, BT Sanhedrin 37a. 33 Olshansky, p. 43. 34 BT Shevuot 39b. 35 Genesis Rabbah 71. 36 Tendler and Rosner, p. 87.

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They should not be burdened with culpability for their disability or its consequences. In addition to theological sensitivity, verbal sensitivity is paramount, and indeed, is reflected in the Talmud’s endorsement of euphemism.37 For attitudes are embedded in language, which itself reflects social structures that reinforce existing attitudes through categorization. Breaking out of these configurations calls for learning to take the perspective of others, as recommended by the Mishnaic passages cited earlier. 6.2. Promoting accessibility of services and resources The struggle of the disabled for integration into society is hampered by the inaccessibility of community services and resources. Access to physical contexts must be seen as a means of gaining access to its social structures, so that the disabled can participate as full members. Individual, family and societal obligations to the disabled should express the common commitment to assist the disabled to lead lives as complete and productive as possible. Inaccessibility to synagogues is a virtually universal problem: most were constructed without taking the needs of the disabled into account. Not to make the services accessible from the perspective of all users is a less obvious variant of the indifference which, we saw, is considered tantamount to idolatry.38 One can understand the admonition not to “shut thy hand from thy needy brother,” but rather to “open thy hand unto him” (Deut. 15:7–8) as directed against this kind of shutting out as well. Similarly, inviting the needy to partake of the festive Passover Seder – kol dikhfin . . . yetei veyifsah – is an empty gesture if the venue is inaccessible. Astor suggests ways of overcoming physical barriers to accessibility in the synagogue, together with proposals for overcoming attitudinal and communication barriers.39 To make their participation truly possible, the disabled should be assisted in putting on phylacteries, reciting the blessings, and in carrying out other precepts to the degree possible. The community should, in line with its financial capacity, provide appropriate assistance to relevant institutions. In addition to the enhancement of educational institutions and libraries, especially for the hearing and vision impaired, access should be provided to institutions such as the ritualarium and community center.40 “For My house shall be called a house of prayer for all peoples” (Isa. 56:7), the disabled among them. Cooper suggests ways to integrate the deaf more

37 38 39 40

JT Ketubot 1:1. BT Ketubot 68a. Astor, pp. 148–53. Tendler and Rosner, p. 96.

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fully into the community structure.41 The rabbi is a key figure in affirming and ordering the values of a community, hence his leadership role in this effort cannot be overestimated. In community forums, sign language or interpreters should be provided to enable deaf members to participate fully in programs offered. Professionals should seek means of fostering dialogue between the community and disability activists, for example, by their inclusion as speakers at community meetings; by addressing the needs of the disabled in planning and executing community projects; by inviting the disabled to take an active role in community decision-making. “Yours may not be to complete the task – but you are not free to desist from it.”42 Technological advances and scientific knowledge, we have seen, have significant religious as well as material consequences for the disabled. In the synagogue, as in the home and in community social and educational frameworks, awareness of such advances should be fostered. The abled, together with the un-abled or differently-abled, must be made aware of the need and possibility of doing more, so that the disabled members of society can truly feel welcome and valued. In so doing, in engaging in tikun olam, they thereby deepen their covenantal bond, as expressed by the halakhic enterprise, and carry out the task of transforming “the emptiness of being into a perfect and holy existence bearing the imprint of the divine name.”43

7. Concluding remark Disability can be seen as a metaphor for human existence – limitation, imperfection, ephemerality, and endless challenge. This may explain why the blemished kohen is disqualified from the Temple service. Disability heightens and dramatizes the universal struggle for self-definition, self-acceptance and autonomy. At the same time, however, the uniquely poignant and heroic character of the struggle of the disabled must not be blurred in the attempt to see disability as the epitome of the human condition. We have focused on those who are “different” as they are perceived in a culture where differences are elevated from contingencies to “holy” distinctions. Jewish law affirms these differences, prescribing different paths for the abled and the disabled on the basis of functional abilities; it prefers to ask too little, rather than too much, from the disabled. Given that Jewish law is both a corpus of legislation, much of it ancient, and an ongoing process of value clarification, we have, in the

41 And see recommendations in Schreiber, pp. 35–6, Fleischman, p. 43, Hurvitz, pp. 50–1, and E. Goldstein, pp. 56–60. 42 Mishna Avot 2:16. 43 Soloveitchik, 1983, p. 101.

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self-correcting spirit of the latter, attempted to identify those elements of the former conducive to self-fulfilment for the disabled, and those which, due to insensitive interpretation, impede it. We have explored the law’s potential for heightened sensitivity to and empowerment of the disabled, and for redressing the discrimination and obdurateness that have been countenanced hitherto. “Blessed art Thou, O Lord our God, who endows creatures with diversity.”

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Abbreviations BT JT Code OH YD EH HM SW Meier

Babylonian Talmud Jerusalem Talmud Maimonides, Mishne Torah Orah Haim Yore Deia Even Haezer Hoshen Mishpat J.D. Schein and L.J. Waldman, eds, The Deaf Jew in the Modern World, New York, 1986. L. Meier, ed., Jewish Values in Bioethics, New York, 1986.

Abraham, A.S., Comprehensive Guide to Medical Halakhah, 1990. —— Nishmat Avraham (Hebrew), Jerusalem, 1980. Adler, N.M., “The Morning and Evening Sacrifice – How to be Represented in these Days: With Special Reference to Claims of Deaf Mutes in the Jewish Community,” Sermon at the Great Synagogue, London, January 28, 1864, in SW, pp. 24–6. Astor, C., . . . Who Makes People Different, New York, 1985. Auerbach, S.Z., Collected Papers on Electricity and the Sabbath (Hebrew), Jerusalem, 1978. —— “Microphone, Telephone and Amplifier – Can They be Used on the Sabbath?” (Hebrew), Sinai 1948, 139–54. Aviner, S., “Stigmatization in Traditional Jewish Sources,” International Journal of Medicine and Law 9 (1990), 1246–9. Bar-Ilan, N., “The Mentally Diminished, Mentally Handicapped and Retarded” (Hebrew), Tehumim 8 (1987), 103–13. Batavia, Meeting the Health Care Needs of Physically Disabled Persons in the Netherlands: Implications for U.S. Health Policy, Oakland, Ca., 1990. Bat Adam, R., All Israel are Responsible for One Another (Hebrew), Tel Aviv, 1982; German tr.: R. Rosenzweig, Solidaritat Mit den Leidenden In Judentum, Berlin and New York, 1978. Batzri, E., “Prayer Leader in Wheelchair” (Hebrew), Tehumim 4 (1983), 455–60.

References in the text are to standard editions of the halakhic sources.

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Belkin, S., In His Image, London, n.d. Bendel, J., H. Palti, S. Winter, and A. Ornoy, Prevalence of Children with Disabilities Age 2–3 in Israel (Hebrew), Jerusalem, 1987. —— Prevalence of Disabilities Among 7 Year Old Children in Israel (Hebrew), Jerusalem, 1989. Berkowitz, E., Not in Heaven: The Nature and Function of Halakha, New York, 1985. Blau, J., “The Defective in Jewish Law,” in Jewish Eugenics and Other Essays, New York, 1916, pp. 23–50. Bleich, J.D., “Current Responsa, Decisions of Bate Din, and Rabbinical Literature: Status of the Deaf-Mute in Jewish Law,” Jewish Law Annual 2 (1979), 187–94. —— Contemporary Halachic Problems, vol. 2, New York, 1983. Blidstein, G., “Great is Human Dignity – the Peregrination of a Law” (Hebrew), Shenaton Hamishpat Haivri 9–10 (1982–83), 127–85. Callahan, J., Don’t Worry, He Won’t Get Far on Foot, New York, 1989. Chill, A., The Mitzvot, Jerusalem, 1974. Cohen, I.J., “The Blind in the Halakha” (Hebrew), Hamaayan (1964). —— “The Blind in Jewish Law” (Hebrew), Sinai 45 (1964). These articles are the first chapters of a comprehensive study of the blind in Jewish law. The other chapters remain unpublished. Cohen, R. Shear-Yashuv, “Old Age in Judaism” (Hebrew), Sefer Assia 6 (1989), 79–89. Cooper, S., “Jewish And Deaf: One Microculture or Two?” Journal of Jewish Communal Service 68 (1991), 50–8. Davis, F., “Deviance Disavowal: The Management of Strained Interaction by the Visibly Handicapped,” Social Problems, 1961. Dishon, D., The Culture of Controversy in Israel (Hebrew), Jerusalem, 1984. Epstein, J.N., Introduction to the Tannaitic Literature: Mishna, Tosefta and Halakhic Midrashim (Hebrew), E.Z. Melamed, ed., Jerusalem, 1957. Fact Sheet on the Netherlands V1E 1991, “Accessibility for the physically disabled,” Holland, 1991. Federbush, S., “Law and Ethics Come Together in Israel’s Torah” (Hebrew), in S. Yisraeli, ed., Jewish Thought (Hebrew), Israel, 1964. Feldman, D., “Deafness and Jewish Law and Tradition,” in SW, pp. 12–23. Feldman, E., “ ‘Who Has Not Made Me a Woman’: An Articulate Brakha,” Tradition 29 (1995), 69–74. Fleischman, A., “The Deaf Person and the Jewish Community,” in SW, pp. 37–43. Flusser, D., “Blessed are the Poor in Spirit,” Israel Exploration Journal 10 (1960), 1–13. Fortner, Y., “Caring for the Disabled, Halachic Dilemmas,” Sh’ma: A Journal of Jewish Responsibility 13 (1982), 4 –7. Freehof, S., “Mentally Retarded Child and Bar Mitzva,” in his Recent Reform Responsa, Cincinnati, 1963, pp. 23–7. From, G. “Attitudes of Jewish Population towards the Physically Disabled”. PhD Dissertation, New York University, 1987. Gertel, E., “Because of Our Sins,” Tradition 15 (1976), 68–82. Ginzberg, L., Legends of the Jews, Philadelphia, 1969. —— Geonica, New York, 1968. Goldberg, Z.N., “Marriage of Retarded Persons” (Hebrew), Tehumim 7 (1986), 231– 48. Goldstein, E., “Ceremonials, Rites, and Worship,” in SW, pp. 56–60. Greenberg, I., “Toward a Covenantal Ethic of Medicine,” in Meier, pp. 124–73.

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254

I NDEX

Abba b. Kahana, R. 16 Abba b. Memel, R. 132–3 Abimelech, impotence of 64 acceptance of disability (kabalat hadin) 66 Adam 29–30, 49n3, 49, 233 adopted children 136 aesthetics 211; vs. ethics 174 agency: in baking matza 222; in extending Sabbath boundaries 223; in heave offerings 199; in observing sensory precepts 164; in observing verbal precepts 160 Aha b. Jacob, R. 184 ailonit (sterile woman) 156 Akiba, R.: on healing 64; on instruction in swimming 143; on mental incompetence 98; on sensory transposition at Sinai 90 n45, 241; on suffering 46, 46 n135, 59, 59 n51; on trumpet blowing 212; on value of life 23, 75 n39 aliya (to the Torah) and the blind 175 amputee, obliged status of 219 apostasy for survival 31 n59 arevut (interdependence) 31, 41–3, 153, 233, 245; and the blind 33; expressed in liturgy 167 armless spouse and the ordeal of jealousy 153 artificial limbs, use on Sabbath and festivals 229–31 artificial sounds in precept observance 226–8 Ashi, R. 59, 154 Asi, R. flees from parents 85 assembly (hakhel), exemptions from 203–9 assistance to overloaded animal 77 asymmetric relations: charity 75; power 93 avenger of blood 101 Azharot Hapesah (Passover Hymns) 221 Baba b. Buta 53 Balaam 51–2

Bamburger, R. Moses on deaf-muteness 123 bar daat (intelligent agent) 113 Bat Adam, Rachel 42–5, 61 bathing and bodily functions, Shammai’s views on 26, 26 n29 ben kritut (member of the covenant) 33, 235 benediction: birkat kohanim by disabled priests 80–4,170; over deliverance (hagomel ) 87, 166; over difference (meshane habriot) 87; over enjoyment (birkat hanehenin) 87; over good and bad (hatov vehametiv) 166, 168; at home 89; by parents over children 174; over precept (birkat mitzva) 87; retroactive 167; over tragedy (dayan emet) 87 Berkowitz, Eliezer 41 nn103–4 blasphemy, accusation of 45 Bleich, R. J. David on healing mental disability 113 blemishes as disqualifying from priestly benedictions 80–4 blind: blowing shofar 189–90; considered as dead 55, 246; degradation of 130; exempt from capital punishment 100; exploiting of 95; fringes (tzitzit) 190; havdala 162; laying on of hands (semikha) 210–11; leading Seder 184–6; lighting Sabbath candles 194; in liturgy 162; menstruant 224; new moon sanctification 163; ordeal of jealousy 155; phylacteries 192–3; pilgrimage (regalim) 207; precept obligation of 55, 96–102; priestly benediction 174; reciting kiddush 33, 183; reciting prayers 171; ritual slaughter (shehita) 217; sensory compensation 59; status compared to that of Gentiles and women 104; use of cane on the Sabbath 229, 231 blindness: congenital 105; as greatest affliction 51 n9; memories prior to 165; in one eye 59, 82; as paradigm 95 Blidstein, G. 12, 25, 28 n41

255

I N DE X

body, care of 25 body and soul 24, 50 boshet see degradation Braille text in precept fulfillment 1795 bride, praise of the disabled 57 bullhorn for magnifying shofar sound 227 Callahan, John 5 n26 cane, use of on Sabbath 228 canonical-critical approach 9 capital punishment, exemption from 99 Caro, R. Joseph: on diagnosis of mental disability 112; on reinstatement of disabled priest 82 charity (tzedaka): definition 70; donor resentment 74; facilitating 73; objective and subjective needs 77–9; obligation of alms recipient to give charity 77; screening 74 child support by mentally disabled parent 109 childbirth by paralyzed woman 225 childlessness 2, 55, 62–4, 67 Childs, Brevard 9 n55 circumcision 31; on the Sabbath 136, 140–1 civil liability, blind exempt from 101 Colon, R. Joseph on diagnosis of mental disability 112 commandedness, priority of 103, 103 n27 communal habits, change in 246 compensatory sensory mechanism 59 compassion and exemption from observance 108, 208 congenital vs. acquired disability 45, 201; blindness 105; deaf-muteness 125; different benediction 88; mortality as congenital disability 49 conjoined twins 136 conjugal relations with menstruant 224 corneal transplant on the Sabbath 55 corporal punishment of the blind 100 court intervention for the mentally disabled 157 covenantal inclusion of the disabled 234 covenantal infertility 135 covenantal person 33, 47 cursing the deaf 92–3 darkhei shalom in dealings with the disabled 94 davar shebikedusha (sacred liturgy) 178 David’s revulsion from the lame and the blind 53–4

deaf: eligibility for reading the Megila 180; frustration caused by interaction with 93; menstruant 224 deaf-mute: definition of deaf-muteness 114–15, 115 n83; emotional capacity 126; kiddush 183; marriage and halitza 117–18; mental competence 115–17; pilgrimage 204; preparing Torah parchment 218–20; recovery of speech 118–26; rote learning 123; volition 116; as witness 125 deafness as a paradigm 95 death in childbirth as punishment 60 definition of disability, handicap and impairment 3 degradation (boshet), assessing 97, 129–34 dependency of disabled persons 6, 65–6 derekh shtut (insane comportment) 109 diagnosis of mental disability 109–12 dialectical tendencies in the halakha 235 dignity: and negative precepts 26; treating disabled persons with 15–17 direction in prayer by the blind 170 disabled: minors, education of 148–50; Torah scholars 142 disability: ambiguous attitudes to 233–4; as avenue to insight 58–9; congenital vs. acquired 45; definition of 3; family adjustment to 5; idealization of 56; import of 4–8; legitimation of 5; transcending of 91 disqualification: of judge 211; of priest 80–4; of witness 97 dissonance in religious attitude 1–2, 8, 18, 244–5 distancing from the disabled 48, 187–8 divine dictate account of precepts 39–41 divine grace 46 divine image 49; reflected in intellect 21–5 divine retribution theory 52, 60–2 divorce: and mental disability 113; with gestures 117–18 donor concerns re charity 72–5 educated congregation, led by blind hazzan 174 education: Joshua b. Gamla’s ordinance 143; of minors 147; R. Bleich on 144; remedial 143; role of in overcoming estrangement 80–4; schools for the deaf-mute 122; schools for the mentally disabled 144–51 Eger, R. Akiba on the blind 106

256

I N DE X

Eleazar, R. 44, 49, 53, 56, 108, 123, 200, 237 Eleazar b. Azariah, R. 206 Eleazar b. Pedat, R. 70 n5, 71 n15, 73 n24 Eliezer, servant of Abraham 56 Elijah the prophet 54 emasculation 60; see also eunuch Emden, R. Jacob: on the blind 82, 174–5, 177, 182; on whether the golem has intelligence 22 emotional capacity of the deaf-mute 126 empathy 46, 56–9; in messianic vision 15 Engel, R. Moses Leib on the deaf-mute 123 epilepsy 60, 111 eruv tehumim (extending Sabbath boundaries) 223 estrangement, overcoming 80–4 Ettlinger, R. Jacob 53–4 eunuch: in Isaiah 56; ordeal of jealousy 156 euphemism (lashon sagi nahor) 57, 247 exemption justified without prooftexts 215 existential condition, liturgical reference to 166 eye, saving on the Sabbath 139–40 Feinstein, R. Moses: conservatism of 242; on the deaf-mute’s emotional capacity 126; on divorce by the mentally disabled 112–13; on halakhic status of live sound 227; on priest with prosthesis 83– 4; on shote and peti 145; on special education 150 Feldman, R. David on the deaf 7 n1, 127 n131, 239–41 ‘fences’ around the law 30 festivals, use of artificial limbs on 229–31 forgiveness, asking for 129 Frank, R. Pesach on blind leading Seder, 185 fraud 73 Freehof, R. Solomon on Bar Mitzva for deaf-mute boy 179 fringes (tzitzit) 189–92 frustration in relationships with disabled persons 93 Gadamer, Hans 9 n55 gavra bar hiyuva (precept bearer) 34 n72, 219 gemilut hesed 69–70 genitalia, tort for seizing 99 Gentiles as precept bearers 18, 34, 104, 235 gestures (remiza) by the deaf-mute 117–18

gezera shava (analogy by common word) 98 golem, cognition of 22 Grace after Meals (birkat hamazon): by the blind 187; invitation to say Grace (birkat hazimun) by hermaphrodites 187 gradations in mental incapacity 114 n78 Greenberg, Moshe 49 n3 Grossnass, R. Arye on Bar Mitzva for deaf-mute boy 179 Hagar 62 Haggada recitation by the blind 184–6 hagomel benediction 87, 167 Haim of Sanz, R. on deaf-muteness 120 halakha: ambivalence of 3, 18; compromise in 199; conservatism of 232; criticism of 238–9; and culture 19; definition of 8; halakhic obligation and inclusion in community 243; innovation in 238; self-referentiality 19 Hanina, R. 36–8, 46; on charity 74; on commandedness 103 Hanina b. R. Hillel, R. 165 n17 Hannah’s childlessness 64 Hanuka 193–6 Hartman, David 9 n54, 24 n19, 41 n104, 46 n136, 50 nn5–6, 52 n15, 65 n84, 64 nn90–1 hasidut shel shtut (foolish piety) 225 havdala by disabled 163, 166 head-nodding by deaf-mutes 121 healing mental disability 113, 119–25 hearing aids 226–9 heave offering (teruma) 197–203 heresh see deaf-mute hermaphrodite: pilgrimage 207; semikha 211; tzitzit 191; see also tumtum Herzog, R. Isaac 9 n51, 28 n43, 32 n61 Heschel, Abraham 12 n60, 23, 26 n31 Hezekiah (amora) 37–8, 39–41, 144 n73 Hildesheimer, R. Azriel: on the blind 106; on recovery from deaf-muteness 119–24; on science and Torah 236–7 Hillel: on care of the body 25–6; on Golden Rule 70 n6; on lying 57; on procreation 134 Hiya, R. on divine retribution 61 n63 Hoshea, R. as exemplifying empathy 56 human dignity (kevod habriyot) 22, 26–7 humiliation: of the deceased 90; prevention of 243; subjective humiliation (kisufa) 132; see also degradation Huna, R. 81, 109–10, 135, 202, 209

257

I N DE X

idolatry, indifference equated to 71 ilem see mute image of God (tzelem elohim) 21–5 imitatio Dei 71, 174 impotence of Abimelech 62 Inbari, Shaul 61 n66, 167, 178 incapacitated relatives, caring for 84–5 inclusion 13, 94 indifference to disability 6; compared to idolatry 71; rationalization of 74 individual differences, charity and 78 infertile offspring 135 intelligent agent (bar daat) 113 intention: in heave offering 200; in preparatory activities 220–1; in red heifer rite (para aduma) 213; in ritual slaughter (shehita) 217; surrogate intention 222 interdependence see arevut Isaac (the patriarch) 2, 56, 60–2, 130, 185 Ish Gamzu, R. Nahum 43, 58–9 isolation of the blind 243 Israel ( Jewish people), ethical qualities of 68

Kook, R. Abraham on heave offering 199

Jacob (the patriarch) 2, 60–2, 129 Jakobovits, R. Immanuel on deaf-muteness 119 n103 jealousy, ordeal of 153–8 Jeruham, R. disqualifies priest 83 Job 65, 72 Johanan, R. 22, 30, 43, 45–6, 53 n19, 59, 132 n13, 162 n5, 203 n78, 205, 224 n47 Johanan b. Beroka, R. 135, 214, 236 Johanan b. Dehabi, R. 65, 206 Johanan b. Gudgada, R. 200, 205 Johanan b. Zakai, R. 83 n24 Jose, R. 157, 164, 169, 180–1, 183, 198, 205, 208, 230–1 Joseph, seduction of 51 Joseph, R.: on blind leading Seder 186; blind sage 55; on divorce 103; on heave offering 198 Joshua b. Gamla, R. on education 143 Joshua b. Hanania, R. 44 Joshua b. Korha 65, 76 n40 Joshua b. Levi, R. 43, 45 Judah, R. 36–7, 49 n3, 55, 80, 83, 96–106; on precept obligation of the blind 130–2, 136, 142, 144 n73, 164–7, 180, 191, 198–200, 206–8, 211 n125 Judah the Prince, R. 43, 50, 115 n83, 133, 144 n75, 205

Maharam of Rothenberg on potential of the disabled 16 Maharam Schick on deaf-muteness 121–2 Maharshal 163, 174 n68 Maimonides: on care of parents 84; on cause of deaf-muteness 124; on charity 74; on cursing the deaf 93; on diagnosis of mentally disabled 111–12; on impotence 156; on Megila reading by deaf-mutes 181; on procreation by proselyte 135 manslaughter, exemption of the blind from liability for 99 Mar Ukba as exemplifying tzedaka 73 marriage 117–18 Marx, Tzvi 78 n53 Megila: obligation of the deaf 180; time-specific precept 31 Meir, R. 55, 76, 82, 107, 142, 155, 169, 172, 174, 181, 190, 194, 230; on compensation for degradation 129–30; on precept obligation of the blind 96–102 Meiri: on degradation of the blind 131; on no-fault approach to disability 61; on saving an organ on the Sabbath 140 memory: and blindness 165; imprinting 185 menstruant 224–6 mentally disabled: compared to machines 222; degradation of 133; education of 144–6; exemption from precepts 107–9; extending Sabbath boundaries 223; Hanuka candle-lighting 194–5; mental

kiddush 183 kidney disorder and phylacteries 27

lameness: and ordeal of jealousy 155; of patriarch Jacob 61–2; and pilgrimage 207; of R. Zera 44 Landau, R. Ezekiel on the deaf-mute and the mentally disabled 146–7 Landau, R. Samuel: conservatism of 242 n22; on deaf-muteness 242 n22 lav benei deia (lacking understanding) 114 leadership by the disabled 52 Leibowitz, Yeshayahu 24 n19, 29 n51, 38 n87, 40 n99 Leibush, R. Judah on deaf-muteness 120 leprosy 59 Levin, R. Faitel on divine decree re exemption 102 Levinas, E. 69 levirate ceremonies by the deaf-mute 118 liturgy, attitudes in 86–9 liturgical observance 160 loving-kindness ( gemilut hesed) 69–70

258

I N DE X

retardation 111 n64; pilgrimage and 108, 204; as ritual slaughterers 218; Sabbath candle-lighting and 194–5; saving on the Sabbath 137; as witnesses 97 meshane habriyot (benediction over difference) 87 messianism 15, 66–8 microphone 226–8 Minow, Martha 4 n17 minyan (prayer quorum), deaf-mute in a 171 mispronunciation as disqualifying 81 miut ahar miut 99 monkey-like behavior (maaseh kof bealma) 122 moral agency 108 morale and hope 65–8 mortality as congenital disability 49 Moses’ speech impediment 51 Murphy, Robert 4 nn16, 18, 6 nn28–32, 48 n1 mute (ilem) 114–15; see also deaf-mute Nachmanides on cursing the deaf 92–3 neglect of the disabled 244 Neusner, J. 10 new moon sanctification (kidush hahodesh) by the blind 163 Noah as perfect 50, 54 n29 Noahide laws 29–30 Novak, David 23–4 obligation, dignity of 28, 242–3 olfactory disability 166 ombudsman for the dependent 95 ordeal of jealousy 153–7 organ, saving on the Sabbath 139 Papa, R. 110, 131–3 parity of obligation 31–4; and deaf 199 perfection, myth of 49–50 petura degufa (exemption of the person) 219 phylacteries (tefilin): and contagious disease 192; and the orthopedically disabled 192–3; preparation of parchment for 219–20 pilgrimage (reiya) exemptions 203–9 Potiphar 60 poverty 77–8 prayer 171–4 precept (mitzva) observance 30, 34 –41; a priori (lekhathila) and a posteriori (bediavad) 199; differential obligation of men and women 31–2; dignity of obligation 28, 242–3; time dependence in 190–1

preparatory observances (hekhsher mitzva) 216 Pri Megadim on deaf-muteness 219 procreation 134 prophecy and handicap 16–17 proselytes: procreation by 135; verbal abuse of (onaat devarim) 90 prosthesis: on pilgrimage 207; priest with 83 purification rite, disqualifications from 213–14 Rab 49, 59, 139, 152, 162 n5, 181 Rabad 191–2; on parental care 84–5 Rabbenu Tam on Sabbath candles 196 rabbi as advocate 248 Rachel (the matriarch) 2, 63–4 Rackman, Emanuel 19 n78, 31 n59, 39 n91 Radbaz on blind priests 83 Rashba on shmura matza 220 Rabbah (bar Nahmani) 59 Rava (R. Abba) 10, 75 n35, 76 n42, 204, 208 Rebecca (the matriarch) 2, 56, 62–3 recovery from deaf-muteness 118–26 red heifer ( para aduma) 36 n76; sprinkling ritual 213–14 refuge, city of 99 religious potential of the disabled 16 responsibility 41–3; see also arevut revulsion from disability 4, 53–4 Ritba on the blind 105 ritual slaughter (shehita): by the mentally disabled 109; qualification for 217–18 Sabbath: artificial limbs 229–31; boundaries (eruv tehumim) 223; candles 193–5; hearing aids 228 Sabbath desecration: childbirth 194; to save life 137; to save a limb 139; using the mentally disabled for 151 Sacks, Oliver 241 n21 Samson: blindness of 51–2; mother’s childlessness 64 Sanders, J.A. 9 n55, 11 n58 Sarah (the matriarch) 2, 62–5 “second-generation” disabled 64 Schreiber, R. Moses (Hatam Sofer): on science 236; on spiritual pollution (timtum halev) 113 scientific knowledge, attitude to 236 Seder led by blind 183–7 “seeing” as ref lection 163 self-reliance 75–6 semikha (laying on of hands) 210–11

259

I N DE X

sexual identity 6, 32, 141, 141 n53, 156, 191 sexual violations 60, 63– 4, 150, 156, 225 Shammai: on care of body 26; on lying 57; on procreation 134 Shema recitation by disabled persons 163–5, 169 Sheshet, R.: blind sage 55, 59; on the blind: and divorce 103; and the ordeal of jealousy 154; reading the Haggada 186; reading the Torah 175 shiyarei mitzva (remnant of a precept) 210 shmura matza kneaded by the deaf-mute 220–2 shofar blowing 196–7; via hearing aid 226; via phone 226 shote and peti 145; and prophecy 107; see also mentally disabled Shuchatowitz, M. on Sabbath hearing aid use 228–9 “signing” the Megila 182 Silman, Y. 39 n92, 40–1 nn98–102 Simon, R. 39 n91, 229; on degradation 129 Simon b. Eleazar, R. 156 Simon b. Gamaliel, R. 114 n81, 201 Simon b. Lakish 72 n22 Simon b. Menasia, R. 137 n29, 140 n45 Simon b. Yohai, R. 45 sin and disability, linkage of 246 Sinai and disability 244 Sodomites, blindness of 61 Sofer, R. Abraham on achievements of deaf-mute students at Vienna school 125–6 solidarity with sufferers 43– 4 Soloveitchik, R. Joseph 10, 42 somatic metaphors 207 speaking spirit (ruah memalela) 22 speech aids 226–8; in reciting benedictions 178 speech disability: and aliya to Torah 175; of Moses 51; and recitation of Shema 169 stereotyping, overcoming 246 sterility 156 sterilization 150 stigmatization 53–5 study vs. action 233 suffering: of animals (tzaar baalei haim) 129; and guilt 44; halakhic caution in face of 243; responses to 46 n134; self-inflicted 58; theology of 44–5 synagogue, accessibility of 247

tactile access to Torah for the blind 240 Tanhuma b. Abba, R. 15 technology and precepts 226–31 teleology of precepts 38– 40 Temple festivities and the deaf-mute 116 Ten Plagues 61 n67 Tendler, M. and Rosner, F. on mechanical aids 231 theology of disability 51, 60–8, 102 theonomy 39– 40 tikun olam 29, 245–8 tithes 197–203 Torah, addresses evil impulse 152 Torah reading: by blind 165, 176; by speech impaired 178 transcending disability 91 trumpet, precept of: by disabled priest, 212 Tree of Life 49 n3 tumtum 32, 32n 63, 191; see also hermaphrodite ugly man 54 unconsciousness and tort liability 97 Urbach, Ephraim 24 n28, 28–9 nn44–5, 30 nn55–6, 36 n79, 37 n81, 38 nn86, 88, 40n 93, 49 n3, 50 n7 Vienna school for the deaf-mute 119 vision, benedictions related to 162–3 volition, of the deaf-mute 116 voluntarism in precept-observance: arguments against 37–41; arguments in favor of 35–7 Waldenberg, R. Eliezer: on the deaf-mute 125; on live vs. synthetic sound 227 wheelchair: battery-operated 231; leading prayer from 173; in ritualarium (mikve) 225 WHO (World Health Organization) 3 witness: deaf-mute as 125; disqualification 97 women, voluntary fulfillment of precepts 40 nn97, 104 Yosef, R. Ovadia: on the blind 106; on the blind leading a Seder 186; on fringes 191; on kneading matza 222 Zebid, R. 133 Zedekiah 53 Zeev, R. Benjamin on the blind 105, 176 Zera, R., lame dwarf 44 ziluta (public disgrace) 132

260