Monthly Archives: July 2014

2014 Summer Beit Midrash, Week 4

By Betsy Morgan and Leah Sarna

The Summer Beit Midrash’s endeavor to make a sugya, a coherent topic, of Halacha and disabilities continued this week with the issue of guide dogs in places of study and worship. We then moved to the status of cheresh (a deaf person) in halacha.

The primary voices regarding guide dogs are the writings of Rav Moshe Feinstein, Rav Mordechai Yaakov Breish, and Rav Binyamin Lau. Rav Lau’s tshuva is the most recent, and presents the machloket between Rav Moshe and Rav Breish’s tshuvot.

Rav Moshe’s answers the following question: Is a blind man who requires having his guide dog with him at all times able to enter a Beit Knesset, or would it be inappropriate to bring in an animal?

Rav Moshe cites a report in the Talmud Yerushalmi that someone who had learned Torah was allowed to lodge in a Beit Midrash along with his donkey and belongings.  This follows the principle found in Masekhet Megilla that the “Place of the Rabbis” (bei rabanan) is the “House of the Rabbis” (beita d’rabanan).  Since Diasporan batei knesset are generally built on condition that they have the status of batei midrash, it is therefore clear that bringing a donkey into a Beit Knesset is no worse or disgraceful than eating, drinking, and sleeping in Beitei Knessiot, which is permissible in extenuating circumstances.  Through a series of proofs, Rav Moshe shows that in our times it has become more common to eat and drink in Beitei Knessiot, not only in extenuating circumstances.

Additionally, a small proof can be provided from a Rashi on Brachot 62, that explains that Abaye raised a sheep that was always with him. Knowing that Abaye spent most of his time in the Beit Midrash and inferring from the use of “always,” it is probable that the sheep would enter the Beit Midrash.

Therefore, a blind man may bring his guide dog with him to enter a Beit Knesset and participate in the congregation.

Rav Breish responds directly to Rav Moshe and offers a broad array of criticisms of Rav Moshe’s lenient conclusions.

  1. The leniencies Rav Moshe lists should only work with an actual Beit Midrash and not a Beit Knesset.
  2. The Yerushalmi is concerned with lodging the individual for the night, not during prayer services. Perhaps the presence of the donkey during prayers would have been forbidden since it would disrupt the concentration of the congregants.
  3. Possible animal excrement would also be halakhically problematic in a shul, as people have to keep a certain distance and having a malodorous material would prohibit the recitation of certain prayers.
  4. When the Yerushalmi allows lodging “chamrei” in the beit midrash, perhaps it refers not to the donkey (his chamor) itself but rather to the donkey attendant (his chamar), even if the attendant has not studied Torah.
  5. A dog is more abhorrent than a donkey, based on a Gemara where a dog’s bark causes a woman to miscarry.
  6. A dog would cause a disturbance in a shul when children play with it.
  7. Only haughty people have dogs, and Jews do not customarily keep pets.
  8. It would also be unseemly to allow a dog to enter a Beit Knesset, since Christians do not permit dogs to enter churches.
  9. Abaye’s sheep did not follow him to the beit midrash, but only when he was home.

Ultimately, Rav Breish rules that although the blind man would not be permitted to enter a Beit Knesset with a dog, he presumes that congregants will take responsibility and help him enter and find a space.  Furthermore, if no help is available, the blind person should not be distressed, because in that case he will be considered anoos, in a state of duress, and not obligated to come to services.

Rav Lau responds to a complaint by a large group of blind travellers that they were prevented from entering the Kotel plaza with their guide dogs.  He presents his opinion in the context of Israeli law forbidding discrimination against the disabled, even in religious institutions, unless the discrimination is essential to the character of the institution.  He argues implicitly  that this should require us to rule that the guide dog can enter even if there is a prior halakhic dispute on the matter, so long as the lenient position is clearly halakhically legitimate.  He points out that Rabbi Breish in many ways is making a “slippery slope” argument rather than arguing that guide dogs in shul are directly problematic.

Rav Lau highlights the essence of the argument as resting in how the question was understood. Rav Moshe thought he was faced with a binary situation: either the man will come to Beit Knesset with his seeing eye dog, or he will not come at all.  Rav Breish saw that there was another option, that members of the community would help their fellow.

Rav Lau posits further that Rav Breish saw himself as battling a weakening of religious rigor and was not ready to allow change in Jewish practice, even to the extent that Jews should not start being comfortable with dogs.  Rav Moshe, by contrast, was responding to the (American?) value of independence, and therefore permitted the guide dog to enter even if there were an option of depending on other human beings to help the blind person.

Rav Lau reviews the positions of Rav Soloveitchik, Rav Ovadyah Yoseph, Rav Shlomo Amar, various halachik decisions found on the internet, and Rav Rabinowitz (the Rav of the Kotel, who ruled that dogs could not enter the Kotel Plaza).  He concludes by saying that even according to the opinions that prohibit allowing a seeing eye dog to enter a Beit Knesset, the prohibitions are not strong. The reality is that blind people are accompanied everywhere by their seeing eye dogs, and it is the responsibility of a people to accept people with disabilities as we have done in other legal spheres. It is impossible to compare the state of blind people in the past to that of today.

Rav Lau successfully argued for the Chief Rabbinate to overturn Rav Rabinowitz’s ruling and instead create a designated pathway for people with guide-dogs to enter the Kotel plaza.  He suggests that this will allow people who are disturbed by dogs to avoid them.

Others who have written about this topic recently include Rav Yaakov Sassoon, nephew of Rav Ovodyah Yoseph zt”l. He recognizes that dogs are considered domesticated and educated, but rules that it is still prohibited to bring one into a Beit Knesset.  However, a blind man could walk with his dog to Beit Knesset, find a place to tie it outside, and members of the community will aid him inside the Beit Knesset. If one is to rely on Rav Moshe, it should only be in a community where people are used to being near dogs and where the dog will not cause a disturbance.

On Tuesday we began our discussion on the cheresh, which will extend until the end of the program. Questions abound. Who is a cheresh? What kinds of mitzvot are they exempt from? Why are they exempt from these mitzvot?  How has, can, or should the halakhic definition and status of cheresh change as the result of advances in education, technology, and awareness?

We began our discussion by looking at Tannaitic sources from the Mishnah, Tosefta and Mechilta.

Let us begin with a definitional Mishnah and Tosefta from the first chapter of Terumot. The Mishnah states that

“The cheresh which the sages speak of in all places is a person who neither hears nor speaks.” 

The Tosefta adds a statement by Rabbi Shimon ben Gamliel, who asks

“Who is the cheresh? Everyone who was a cheresh from his beginning. But someone who was able-bodied and became a cheresh, he can write and others can fulfill his words.”

The Tosefta continues,

“The person who hears and doesn’t speak is an ilem (a mute) and the person who speaks but cannot hear is a cheresh— they both are like an able-bodied person in every way.” (We generally assume, in line with a Rashi in Chagiga 2b, that the cheresh who speaks but cannot hear is a cheresh who once could hear and thereby learned how to speak– the person Rabban Shimon ben Gamliel speaks of.)

We therefore have at least two and perhaps three categories of people who our texts sometimes refer to as “cheresh.” Each of these categories have different considerations and different rules. Naturally, this confusion complicates our reading of nearly every text which speaks of a cheresh.

We studied many other Tannaitic texts. With each text we learned a new rule about the cheresh and tried to understand what Chazal thought of him. Here’s a sample:

We began with a very confusing Mishnah from the end of the third chapter of Tractate Rosh Hashanah. In the context of a discussion of kavanah, intention, in the performance of the mitzva of shofar, the Mishnah writes that

“a cheresh, a cognitively impaired person (shoteh), and a minor cannot fulfill the obligations of the masses. This is the principle: anyone who is not obligated in something cannot fulfill the obligations of the masses.”

This piece of Mishnah seems to imply that a lack of intention (or ability for appropriate intention) leads to an exemption from obligation for the cheresh, the cognitively impaired person, and a minor.

We find another statement of principle in the Mishnah in Tractate Gittin (2:6) about the person who is an agent delivering a get:

“This is the principle: whoever begins [his agency] and concludes it with daat (knowledge) is an appropriate agent.”

In this same Mishnah, we learn that a cheresh who was designated as an agent and then becomes able-bodied cannot be an agent, while an able-bodied person who became a cheresh and then became able-bodied again may be an agent.

In Tractate Taharot 8:6 we learn that a chereshhas action (maaseh) but does not have thought (machshava).”

To summarize these Mishnayot: the Mishnah sees the cheresh as lacking in ability for kavanah (intention), daat (knowledge), and machshava (thought). Later sources will typically just refer to the cheresh as someone who is lacking in daat.

We moved on to look at five different sections of the Talmud Bavli.

In Tractate Chagigah 2a-b we find ourselves in the midst of a discussion about people– such as the cheresh–  who need not bring the sacrifice associated with the pilgrimage festivals (Korban Reiya). The Talmud differentiates between our different kinds of cheresh, telling us that those who can speak or hear are still obligated in experiencing the joy of the holiday (simcha), while the cheresh who cannot speak or hear is exempt from the obligation of joy as well. This distinction lines up with our previous understanding that the cheresh who cannot speak or hear is lacking in daat while those who can speak or hear have daat.

The Gemara in Chagigah introduces us to the primary cheresh advocate of rabbinic texts: Rabbi Yochanan ben Gudgata. The Tosefta in Terumot tells a story of his cheresh sons who were in charge of all the purities in Jerusalem. Here in Chagigah we hear a story of his grandchildren who were also chereshim. They used to sit in the beit midrash of Rabbi Yochanan. One day they were healed, and it was found that they had learned the whole Torah.

The Gemara in Yevamot 113a puzzles over the opinion of Rabbi Eliezer who says that the terumah of a cheresh has the status of safek, doubt. What is this safek? There are two options. The first one assumes that the cheresh is “daata kalishta” — a person of weak intellect. The safek of Rabbi Eliezer is just whether he has enough daat for bringing terumah or not. The second option suggests that a cheresh is different at different times– sometimes he is of weak intellect and “lav daata tziluta,” of unclear intellect– and sometimes he is “chalim,” of sound intellect. The safek in this option regards what state the cheresh is in at a given time. We found these options very interesting. The first option suggests that we know the nature of the cheresh, while the second suggests that a cheresh is totally inscrutable. We cannot tell at any moment whether he is of sound intellect or not.

We found the Gemara in Yevamot 104b interesting because it contains opinions which imply strongly that a cheresh has intellect.

In Shabbat 153 we meet a person who finds himself travelling as Shabbat begins. To whom should he give his wallet? If he has to choose between a cheresh and a cognitively impaired person (shoteh), he should give it to the shoteh because the cheresh has stronger cognitive abilities (explains Rashi). If he has to choose between a cheresh and a minor, we see a debate. Rabbi Eliezer would say that we have a doubt as to whether the cheresh is obligated in the mitzvot— so he should give his wallet to the child. The sages would say that he should give his wallet to the cheresh because the child will someday become obligated in the commandments.

We found this text especially interesting because it suggests that Rabbi Eliezer’s safek applies not just to terumah but to all mitzvot.

Lastly, we saw an extremely difficult text in Gittin 67b. This texts argues about whether and how a cheresh can divorce. The Mishnah suggests that a mute person can divorce by nodding to questions. Another text suggests that a cheresh cannot use any kind of signing or motions or writing in order to divorce. We have a third text that suggests that a cheresh who used to be able-bodied can divorce through writing. Last, the Gemara deals with a text which suggests that a man who becomes a cheresh can never divorce. While the Gemara tells us that texts three and four disagree with each other, the final opinion on the matter suggests that one might have resolved the two texts by saying that a cheresh may divorce only if he is capable of writing. We found this Gemara extremely difficult to interpret, however we suspect that it will be very important going forward, as it deals with a cheresh who is capable of communication.

After wrestling with these bits from the Bavli, we began looking at tshuvot from achronim  concerning chereshim. The first two are from the Hilchot Ketanot, an idiosyncratic writer, answering the question, what is the ruling for someone who kills a cheresh (deaf person) or shoteh (cognitively impaired person)?

He begins by bringing a concept from the Gemara that one might think answers the question, but according to him, does not. There are groups of people who are considered unable to pay damages, but if someone is liable for damaging someone from this category, the damager owes the ‘damagee’ damages. A shoteh and cheresh fit into these categorizes. From this concept, one might be tempted to argue that since one would be liable for damaging a shote or cheresh, one would most certainly be liable for killing a shoteh or cheresh. The remainder of the terse tshuva brings cases where one is liable for damages, but not liable for killing, like the people we are “moridin v’lo ma’alin” (we lower them [in a pit] and do not take them out) and treifot (human beings who have a puncture in a vital organ  that will cause them to die within a year).

This shocking teshuvah is the result of believing bodies are irrelevant to the concept of personhood.

The next questions the Hilchot Ketanot answers is if we would break Shabbat in order to save a shoteh or cheresh.

The important points of this tshuva are as follows:

-He argues that a cheresh has at the least more daat (hard term to define, possibly, awareness, intention, or clarity of mind) than a shoteh.

-In two lines, he asks why a high functioning deaf-mute person he knew should be considered an animal as a result of having a low level of daat, and then claims that someone who is missing one sense is not considered a person.

-He compares the deaf to the blind, because they are both missing one major sense, but asks why the rabbis did not make deaf-mutes rabbinically obligated to observe all of Jewish  laws the way that, according to Tosaot, the blind were obligated even according to the position that the Torah exempts them.

The Tzemach Tzedek answers a question of how to conduct the kedushin, the marriage, of a deaf man and woman.

The asker describes the deaf-mute man, his future brother-in-law, as being high functioning: understanding prayer services, working as a tailor, being able to sign his name, and doing business with people. He uses the term “ilem,” which generally means mute. The Tzemach Tzedek’s first point is define this deaf man as a “cheresh” and not “ilem.” He then makes a point of saying that we do not distinguish among different types of chereshim. The marriage should be done such that it is recognizably kedushin m’derabanan (rabbinical marriage) with nodding, instead of the plan suggested by the asker that would appear to be kedushin m’deorita (Biblical marriage). He relies almost entirely on anecdotes of how other chareshim have conducted kedushin, and does not explain why chereshim have the status they do.

The Sha’ar Zekenim is asked if parents have an obligation to educate a cheresh child. In his answer, the Sha’ar Zekenim maintains that there is no obligation of chinukh, religious education, to a cheresh. However, they are fully considered human and Jewish, despite not having religious obligations.

In summary we find that the halakhic questions surrounding chereshim can be answered in a variety of ways, some with outstanding demonstrations of sensitivity and others with an appalling lack thereof. From the time of the Gemara, there have been highly functioning deaf-mute people, the way we saw the highly learned blind Rabbis in past weeks.  The realization that past decisors were aware to at least some extent of high-functioning deaf-mutes means that we cannot simply assert that new circumstances and information have made their decisions obsolete.  This adds complexity to the endeavor of defining cheresh and developing the space of deaf-mutes within contemporary Jewish law.

Shabbat Shalom!

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2014 Summer Beit Midrash, Week 3

This week’s summary is by SBM Fellow Yehuda Gale.

This week we dealt with the impact of what Jastrow calls a “legally significant physical blemish” (מום) on the choice of a Shliach Tzibur. A midrash in Vayikra rabbah and a passage from the Zohar lay out two opposing paths for the later poskim to follow.  Vayikra Rabbah invokes the midrashic method of contrasting God to human kings.  Human kings want only the most perfect servants, while God prefers “broken vessels.”  Rabbi Meir of Rothenburg (the Maharam) interprets this to mean that God prefers the service of imperfect servants in all areas outside of the Avoda.  The Zohar strongly insists on rejecting a Chazan who would be forbidden to participate in the Avoda due to a physical blemish.  Among its sources are some verses from Malachi where God rebukes His people for bringing him sacrifices they would not even give to a human ruler.  These verses seem to say that if even a human king would reject a sacrifice, how could we bring it before the king of all kings?

Rabbi Israel Bruna (the Mahari Bruna) endorses the comparison to a Kohen. Based on this comparison he rules that a congregation should not appoint someone with a legal blemish as an established Chazan, but that he can lead prayer on occasion.  On the other side of the debate Rabbi Solomon Luria in Yam Shel Shlomo agrees with the Maharam, permitting someone with a legal blemish to lead prayer.  In addition to the Maharam’s reasoning, he compares the shliach tzibur to a Levi who can serve as long as his voice remains intact, regardless of physical blemishes that would disqualify a kohen.  Rabbi Joel Sirkis (the Bach) quotes the Maharshal without further comment.  Rabbi Avraham Gombiner in his work the Magen Avraham cites both the Bach and the Zohar.  He concludes that we should avoid appointing someone with a legal blemish as a shliach tzibur.

We next turned to a responsum of Rabbi Moses Sofer, the Chatam Sofer.  The question concerned an epileptic leading prayer on the high holidays.  In the end, he allows the subject of the question to eat before prayer in order to lead on Rosh Hashanah.  In order to permit this, he separates epilepsy from other disabilities.  We can read his reasoning as either social, these people regularly come before human kings, or empirical, at most times a person’s epilepsy is imperceptible. The Chavot Yair rejects the comparison between Kohanim and Chazanim, but rules more stringently than anyone else we saw.  He forbid someone blind in one eye from leading prayer in all but the most extreme circumstances.  He grounded himself in mystical reasons, but wrote one line about the verse in Malachi cited above.

One of the last Teshuvot we discussed this week was the Binyan Tzion.  He accepts the Magen Avraham on authority.  He further claims that even the Maharam would agree that someone with a disfiguring wound, like leprosy, cannot serve as the Chazan.  We were not clear on how his case was distinguished from Maharam’s case.

After the Teshuvot we began discussing an article by Rabbi Binyamin Lau about the current status of Baali Mum.  We focused on his reading of the Chavot Yair and the Magen Avraham.  He read both of them as permitting people with a legal blemish to serve as Chazanim.  His readings left us unconvinced.

Shabbat Shalom!

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2014 Summer Beit Midrash, Week 2

This week’s dvar torah, akin to last week’s, is a summary of the second week of shiur at the 2014 Summer Beit Midrash by Yakov Ellenbogen and Tzipporah Machlah Klapper

Summary: Although the earliest sources indicate that blind men cannot get aliyot, this was mainly due to the prohibition on reciting the Written Torah without a text. As illiterates became more common and it became a tradition to give aliyot on certain occasions, the current system of reading the Torah – wherein the oleh makes the berakhah and someone else reads – developed. This led to the important question: Given that the current system does not require the oleh to read, can a blind person get an aliyah despite being unable to read, or is the capacity to read still required?

Some poskim, including the Rosh and the Beit Yosef, challenged the premise of the question by saying that the oleh is, in fact, required to read as well. Some – the first being the Eshkol and the most notable being the Maharil – ruled that blind men can get aliyot. Later developments continued this split – the Maset Binyamin ruled that blind men can get aliyot, saying that the prohibition on recitation only created a technical exemption that was now ended, while Rav Yaakov Emden ruled that they cannot.

The historical trend towards being lenient began with the Eshkol and spread. By the nineteenth century, and possibly before, even those who followed the Beit Yosef were forced to admit that the majority minhag was against him.

 We began our studies this week with a gemara on Brachot 58a. The Mishnah there lists a series of brachot recited upon “seeing” kings and scholars. The gemara recounts that Rav Sheishet – along with Rav Yosef, one of the Gemara’s prototypical blind people – went with everyone else to see the king. While he was there, a heretic ridiculed him for going to see the king despite his blindness. Rav Sheishet proceeded to show him that he knew when the king was coming by waiting for the silence of the crowd, based on the principle that kings are like God (he proved this particular case from Melachim Aleph 19).

Rav Sheishet makes a berakhah when the king passes. Our text gives the berakhah, which is in Aramaic and very much not the berakhah given in the Mishnah. Some textual variants merely state that he blessed, with the implication that he recited the regular berakhah.

At the end, either the heretic is blinded or Rav Sheishet “places his eyes” upon him and he is turned into a pile of bones. This is clearly ironic: not only can Rav Sheishet “see” better than sighted people, in one version he has super-vision as well!

We wondered as to the significance of Rav Sheishet’ berakhah. If he made a different, Aramaic berakhah, it could be because he had an obligation even though it wasn’t the same one, or because even though he didn’t have an obligation he wanted to bless and did so. If he made the regular berakhah, he could interpret the Mishnah as being about metaphorical sight. If the first, this would seem to support a pro-inclusion attitude: we create an opportunity to act similarly to others so that one can engage in the regular religious activities. The second could lead to a redefinition of “sight” in halakha.

From this gemara we moved to another gemara in Brachot, this one on 8a. Here we are told that it is wrong to leave a Sefer Torah while it is open. It then lists some minhagim practiced during the Talmudic tradition, among them that Rav Sheishet used to turn his head away from the Sefer Torah and recite Mishnah while it was read. He said: “We in ours and you in yours.”  This suggests that Rav Sheshet saw himself as unconnected to the public Torah reading owing to his blindness.

In roughly historical order, we read a series of halakhic texts that addressed the issues related to blind men and reading the Torah: An anonymous gaonic responsum explains Rav Sheshet as meaning the following: “We as much as we are commanded” – this being the Oral Torah, because he was blind and therefore exempt from Torah reading (the Written Torah).

Rav Nitronai Gaon says that a blind man cannot read the Torah for the congregation; he is incapable of fulfilling their obligations because he cannot read. He also cites the prohibition of reciting the Written Torah without a text. Even if a blind man knows the parshah by heart, he is prohibited to read it because he would violate this prohibition. He also rules like the Chachamim in the Mishnah in Megillah: a blind man can say shma – and its brachot – for the congregation.

That Mishnah, which we studied last week, discusses the capacity of a minor and one wearing torn clothing to perform five public rituals; the translation of the Torah reading, leading Shema, leading prayer, the priestly blessing, and reading Torah.  The printed and manuscript editions of the Mishnah say that a blind person can translate and lead Shema, and do not discuss whether blind people can read Torah, lead prayer, or give the priestly blessing.  The Midrash Tanchuma seems to reflect a version of the Mishnah which says explicitly that a blind person may not do any of these. One edition of RIF has the same text as Tanchuma, but parenthesized to indicate that they should in fact be edited out.  ie has the three cases that were missing from the Mishnah in Megillah, but with all three edited out; a later edition has only the second two edited out, with “he may not read from the Torah” left in. This is probably because Rashi al HaRif directly contradicts the other two cases, but does not explicitly permit a blind person to read Torah.

The Piskei HaRid rules that a blind man cannot read from the Torah even if he knows what he’s doing because of the prohibition cited above. Rabbeinu Yerucham concurs and cites both our Mishnah and the textual variant in the Tanchuma. The Rosh explicitly rules like the Chachamim (as opposed to the Gaonim, who merely did so implicitly) and says that a blind man may lead davening, though he cannot read from the Torah. The Agur rules like the Rosh. The Sefer HaBatim rules that blind men can lead davening and claims that there are those who rule against this (possibly endorsing the idea of an alternate text of the Mishnah).

The Meiri rules explicitly like the Chachamim against R’ Yehudah. His reading of the Mishnah is different from Rashi’s – he explicitly states that the reason that a blind man can say shma for the congregation is that he is merely giving them the order of the brachot, not reciting them for them. He rules that a blind man cannot read the Torah for the same reason as those above. He also cites an opinion that blind men can read from the Torah because the prohibition on reciting the Written Torah only applies to those who are capable of reading.

The gemara in Megillah 32a rules that the process of Torah reading is thus: “he opens [the Torah] and looks and makes the berakhah and reads.” During the time of the Mishnah, the same person who said the berakhah read.

We saw three texts of the Eshkol, a 12th-century book by the Raavad II. The first is the notoriously corrupt Auerbach edition, which says that even though a blind groom cannot read directly from the Torah, he can have another man come up with him and bless and stand beside him. No mention is made of who reads; it is possible here that this is yet another man. The second text, the Albeck edition, seems to cite the Mishnah as saying that a blind man cannot read from the Torah. It also says that the second man follows the entire process given by the gemara in Megillah 32a. The third text was a citation by the Nimukei Yosef, who says that the second man does all of the process except for the blessing in a practice suspiciously similar to our current one.

The Agudah says that in a case where the only Kohen in a city is blind, he can take the aliyah traditionally reserved for kohanim. He says that the prohibition of berakhah levatalah is inapplicable, saying that a sighted person should also be exempt, since he has said the berakhah on Torah learning earlier. Rather, he says, the obligation to read the Torah stems from oneself. He offers no further explanation. We speculated that this was somehow connected to the nature of Torah reading; it is about the kavod of the Torah and not what is being read. The Agudah adds at the end that there has been a change in custom since the times of the Mishnah; those called up to the Torah no longer read themselves. This is the first historical mention we saw of such a custom.

The Shiltei Giborim cites the Rosh and another, unnamed position that rules against him, presumably one of the opinions cited earlier.

The Maharil, the major Ashkenazi posek of the 14th century, rules against the Rosh and says that blind men can get aliyot.

The Tur rules like his father, the Rosh, that a blind man can do everything listed in the Mishnah except read from the Torah. He also gives an explanation for the custom mentioned in the Agudah: people often think they are expert enough to read when this is not in fact the case. He also cites his father’s opinion that the person given the aliyah must read along with the reader softly, and that it is unbefitting to call up people who cannot read. He also cites a Talmudic-era custom to have a man standing next to the one reading; Torah reading is, according to the gemara, a reenactment of Har Sinai, and therefore we require a reminder that the reader is only an agent.

From there we moved to the Beit Yosef – Rav Yosef Caro, also known for writing the Shulchan Arukh. He claims to have a wide consensus that a blind man cannot read from the Torah: the Rosh, the Tur, Rabeinu Yerucham, the Rashba, the Shibolei HaLeket, the Rambam, the Rivash, and Maharin Chaviv. He then quotes the Zohar on Parshas Vayakhel, which says that two people cannot read from the Torah, only one. He says, based on this, that the oleh cannot read along with the reader, because there can be only one person reading at a time. He also says that where there is no gemara, it is proper to rule in accordance with the Zohar against later writers. He reconciles the Rosh to this by saying that the oleh can and should read with the reader, but only so long as he is so quiet that he cannot hear himself. He cites a custom of the Jews of Romania, who would have the reader read a word and the oleh repeat it. Because they read the words consecutively rather than simultaneously, he rules that this is in accordance with the Rosh and the Zohar and a proper custom to follow.

The Darchei Moshe – a book by the Rama, who is best known for his gloss on the Shulchan Aruch – quotes the Maharil’s lenient ruling and concludes with an ambiguous abbreviation tkat means he either agrees or disagrees with the Beit Yosef. Many Achronim – and the Bar Ilan text – read him as agreeing.

The Shulchan Aruch rules that a blind man cannot read the Torah because of the prohibition against reciting the Written Torah. The Rama quotes the Maharil there. Elsewhere in the Shulchan Aruch, Rav Caro gives the same rulings and reasons he gave in the Beit Yosef.

The Bach, a commentary on the Shulchan Aruch, says that the position of the Maharil is widely accepted and many great rabbis allow blind men to get aliyot. He brings in the new idea that only a learned blind man, and not an ignorant one, can get an aliyah. He believes that as long as you have only one exclusionary factor against you – blindness or ignorance – we allow you to read, but not if you have two factors against you. Unlike many earlier sources, he doesn’t really understand the drive to allow ignorant people to get aliyot¸ with the implication that he does understand why you would want to allow blind men to.

The Taz brings a story from the Talmud Yerushalmi wherein R’ Meir made the berakhah on Torah reading and had someone else read for him. He thinks that based on the Bach one can extrapolate a full leniency and allow even ignorant blind people to receive aliyot.

The Arukh HaShulchan rejects the Taz’s proof on the grounds that while R’ Meir – who was sighted – was capable of reading, a blind man is not. He cites the Talmudic principle of kol hara’ui l’bilah, ein bilah m’akevet bah – anything that is capable of [doing something], does not need to [actually do so] – as proof. He is puzzled that the Beit Yosef quotes a Mishnah that seemingly does not exist – one that says that a blind man cannot read from the Torah – and concludes that he must have had the Rif’s text. He says the custom is to allow blind men to get aliyot. He thinks that in the end blind men can recite psukim, since Rav Yosef and Rav Sheishet recited the Hagaddah in their households and that has many psukim in it.

The Turei Even on Megillah 24a – the Mishnah in Megillah so instrumental in the opinions given above – finds it unthinkable that a blind man could be totally exempt from all mitzvot according to anyone, and reinterprets R’ Yehudah as obligating him only in negative commandments such as the one that would allow them to make him chayyav d’rabbanan.

The Sfat Emet says that – according to R’ Yehudah – a blind man is only exempt from commandments that we could not have reasoned out on our own – gzeirot hakatuv – that appear in the Torah. He is still obligated in all other commandments, including all other commandments in the Torah and all gzeirot d’rabbanan. He concludes that though blind men are patur from kriat shma, they still need to say the brachot, which are d’rabbanan. Since these can only be said in conjunction with recitation of the Shma, which is Written Torah, he is essentially obligating them from a different angle.

Both of these last sources clearly feel a moral impetus towards making blind men commanded. To them, it seems obvious that it is wrong for a thinking adult who is otherwise normal to be excluded from regular religious activity merely because he is blind. Since the simple interpretation of R’ Yehudah – that a blind man is not commanded at all – is unthinkable to them, they reinterpret him to say something that seems more rational.

After examining the halakhic literature surrounding the Mishnah in Megillah, we moved on to the responsa that touch on the issue of blind people getting aliyot. The first responsum we saw was in the Maset Binyamin. This responsum is unusual in two ways:

The first is that the response opens with a statement of motivation. Through a rhyming introduction, the author informs us that the Beit Yosef, the standard posek, has decided that the blind can’t get aliyot. He responds, however, that the Torah is open to all to interpret, and we have a concept of “Mitzvah achat lo yevatel,” “[Even] one Mitzvah should not be nullified.” In addition, he writes that at that time he was going blind and feels that the psak of the Beit Yosef is excluding him from the participating in Torah by not letting him get aliyot, a fate he cannot accept due to his love and devotion to Torah. Because of this, he feels that he needs to reexamine the question and set up “battle lines” between those who allow blind people to get aliyot and those who forbid it.

This introduction raises a few interesting questions that we discussed in shiur. Does this stated intent impact on his pure halakhic discussion later in the responsum? If it does, does his bias or subjective treatment of the material lessen the impact of his decision on later halakhic discussions? For that matter, is subjectivity inherently “worse” than objectivity, and would we just not accept anything that has a subjective element? All of these questions need to be thought through before making a final decision on the halakha.

The second unusual aspect of the responsum is that the author sets out his own methodology of deciding halakha. This can also be analyzed from two fronts. First, we can decide whether his methodology is compelling. Do we view his outlook on halakha as comparable to our own or not? Second, we can see whether he follows his own rules throughout his responsum.

The specific argument made in the Maset Binyamin follows the method he states in his introduction of making “battle lines.” First he summarizes all the opinions of the Rosh, Tur, Rivash, and Abudraham, all of whom he says hold that blind people are forbidden from getting aliyot due to the reasons above. Then he summarizes the opinions of the Agudah, Eshkol (the version found in the Nimukei Yosef), Maharil, Binyamin Ze’ev, Shiltei Giborim and Zohar.

It is apparent that the list of those who forbid aliyot to the blind found in the Maset Binyamin is different than the list found in the Beit Yosef. The Maset Binyamin says that this is because all of the other sources that the Beit Yosef lists do not actually believe that it is forbidden for the blind to get aliyot; they only quote from the Gemara which forbids people from reciting Written Torah from memory.

Finally, the Maset Binyamin claims that according to his methodology, it is obvious that those who forbid the blind from getting aliyot are wrong. He states that his criteria for an opinion to be the correct one are (1) precedent in the Gemara and its early interpreters, (2) a majority of poskim on one side of the argument, and (3) later sources that support it (since later sources are considered more authoritative in terms of practical halakha). The Maset Binyamin claims that he wins on all three of these issues.

The next responsum we looked at was the Shut Sheilat Ya’avetz of Rav Yaakov Emden. R. Emden’s investigation into the halakha is drastically different than that found in the Maset Binyamin. To begin with, R. Emden’s presentation seems to be hostile, polemical, and filled with negative rhetoric. We raised the question of whether R. Emden believed his arguments, which involved some things, like siding with R’ Yehudah against Chachamim that a blind person is exempt from mitzvot, that are hard to believe.

In this vein, we discussed whether, if one were to take out all rhetorical language and examine the halakhic arguments, one would be compelled to take them more seriously because R. Yaakov Emden had said them. In other words, should we be compelled by rhetoric, or should we take the arguments and the authority that wrote them for granted?

We also focused on the methodology implicit in R. Emden’s response. It appears that R. Emden believes that one side of the argument needs to be completely airtight in all areas; otherwise, it is wrong. He therefore makes the argument that the other side is right about nothing, while he is completely correct.

This seems to be an abnormal methodology. We usually say that the level of proof needed is not absolutely positive, but compelling to a level the posek views to be proper. We concluded that Rav Yaakov Emden probably felt so compelled to prove himself because he knew common practice was against him, so he couldn’t leave any legitimate leniencies.

We noted that common practice could shift the burden of proof. For example, in contemporary Sefardi psak there are opinions that say that a blind person can get an aliyah, relying on the Maharil against the Shulchan Aruch. Does this shift in common practice change the burden of proof one should place on those allowing blind people to get aliyot, or is the common practice not enough?

This touches on the issue of moral instinct in halakha. We have seen over the past two weeks that moral instinct informed many of the interpretations of the gemaras we sawas well as many of the halakhic rulings, from the Eshkol to Tosfot to the Maset Binyamin. Are we willing to say that since common practice is one way – which agrees with our moral instinct – we should agree with that; or should we say that regardless of common practice, if the underlying halakhic argumentation is faulty, we should not accept it? The Tzitz Eliezer seems to side with the first option, and says we should never embarrass blind people and always give them aliyot based on the common practice.

This conversation about moral instinct will hopefully inform us more as we move on in our discussion of people with disabilities and halakha, due to the sensitive nature of the topic.

Shabbat Shalom

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2014 Summer Beit Midrash, Week 1

This week’s dvar torah is a summary of the first week of shiur at the 2014 Summer Beit Midrash by Meir Hirch and Elliot Salinger

Our study of halakha and disability commenced with a study of the verse, לא תקלל חרש ולפני עור לא תתן מכשל, ויראת מא-להיך אני ה’—”Do not curse the deaf, nor place a stumbling block before the blind, and you shall fear God, I am the Lord.” (Vayikra 19:14) Though disability as a  category is not addressed directly in the Torah, this verse does relate to two types of disabled individuals.

Rashi understands cheresh in this verse as representing all human beings. This interpretation expands the prohibition of cursing beyond just the deaf to include all people who are alive. He interprets iver to mean one who is naïve in business, in other words metaphorically blind.

Rashi’s reading abstracts the literal cheresh and iver out of the verse. Kli Yakar and Panim Yafot, both following Rashi, note that one who injures another, rendering him deaf, must make restitution equivalent to the value of the injured’s whole person. (Bava Kama 85b) They explain that on this basis, one may have supposed that it is not prohibited to curse the cheresh, just as it is not prohibited to curse the dead. This verse therefore clarifies that one is still not permitted to curse the cheresh, since the cheresh is the liminal case between the living and the dead. Other commentators, such as Ibn Ezra and Ramban, understand that the verse mentions cheresh specifically because it is the most likely case, because he is particularly vulnerable to being cursed by others.

Each of these mefarshim expand the prohibition’s scope. However, they differ in their explanations of why the terms cheresh and iver should be read to include more than only the blind and deaf.  Rashi may be read to claim that just as it is prohibited to curse the deaf person inasmuch as he or she is living, so too is it prohibited to curse anyone living. This reading claims no essential distinction between the cheresh and the fully-abled.  However, Rashi may also be read in a vein similar to the Kli Yakar and Panim Yafot to argue that since a cheresh is the person most likely to be considered not alive, all other living individuals must be included in the prohibition a fortiori. We noted that rhetoric of this sort may have dangerous halachic repercussions; for instance, there are acharonim who entertain the theoretical possibility that one may not violate Shabbat to save the life of a cheresh. This troubling outcome directly results from the particular way that Kli Yakar and Panim Yafot choose to articulate Rashi’s position. This case demonstrates that at times, the rhetoric accompanying law may be as significant as its normative content.

Following this introduction, we studied a sugya in Bava Kama (86b-87a) concerning those who do not receive compensation for boshet (embarrassment) when injured. The Mishnah rules that a naked person, blind person, and sleeping person all receive compensation for boshet. The Gemara cites a baraita ruling that though those who are injured when naked or in a bathhouse do receive compensation for boshet, their compensation is less than it would have been were they injured when clothed and in the marketplace, respectively. The Gemara later cites another baraita in the name of R. Meir, who rules that though the deaf and minors receive compensation for boshet, the shoteh (cognitively disabled) does not; as well as a baraita in the name of Rebbi, who rules that a minor sometimes receives compensation for boshet, but sometimes does not. In codifying the Mishnah, Rambam (Hilchot Chovel u-Mazik 3:2) mentions the cases of a shoteh, cheresh, convert, slave, and minor. He then states that the compensation for boshet owed to minors, slaves, and the deaf is less than that owed to adults, free persons, and those whose hearing is intact, respectively. Rambam’s formulation raises two problems. First, Rambam omits the Mishnah’s case of a blind person. Second, Rambam’s claim that the restitution owed to a cheresh is less than that owed to an adult has no precedent. Though Rambam’s cases of minors and slaves also do not appear verbatim in an earlier source, minors’ and slaves’ lack of autonomy plausibly explains why they are owed less boshet compensation. This understanding, however, cannot explain the case of a cheresh. To answer these questions, we considered different ways that halakha may conceive of deafness, especially in contrast to blindness.

During the latter half of the week, our discussion focused specifically on ascertaining the halachic obligations of the blind. We analyzed a series of baraitot that introduce the view of R. Yehudah concerning the suma (blind person). R. Yehudah dissents from the anonymous Mishnah and maintains that the sumais not owed compensation for boshet.

The first baraita cited states that R. Yehudah correspondingly exempts the blind from exile in the case of accidental manslaughter, as well as from commandments carrying the punishments of lashes and execution. Some wished to read R. Yehudah to only exempt the blind from the punishments attached to these commandments, not to grant permission to transgress the prohibitions themselves. Through a series of baraitot, themselves based on an interconnected set of derashot, the Gemara concludes that R. Yehudah actually exempted the blind from “all mitzvot mentioned in the Torah.” This could mean that the blind are exempt from all negative commandments, in which case they would still be obligated in all positive commandments; or else that the blind are exempt from all commandments except negative commandments carrying no punishment. Problems arise quickly if R. Yehudah is taken at his word: Are the blind really permitted to commit murder, a prohibition carrying the punishment of execution? Many thought this possibility unpalatable, and suggested that the suma may still be obligated to observe the Noahide commandments, yet there is no textual support for this position. However, an anonymous note to the Sefer ha-Makhri’a, sharing these concerns, argues that the suma is still commanded to observe all mitzvot shev ve-al ta’aseh.

Another Tana’itic source discussed a Mishnah in Megillah Chapter 4 that examines whether a blind person can fulfill an obligation on behalf of another. Because of the principle that anyone not obligated in a mitzvah cannot be מוציא(vicariously fulfill the obligation of) others, this issue is directly linked to the personal obligations of a suma and therefore particularly relevant to the greater analysis.

One of the major obstacles in our investigation is that the sources indicate the presence of two different versions of the Mishnah. The standard text (מגילה פרק ד משנה ו) contains a dispute as to whether a blind person may vicariously fulfill another’s obligation blessing of יוצר המאורות(Creator of the luminaries) as part of the morning Shema recitation . While the Sages allow this, Rabbi Yehudah argues that those born blind have never physically experienced light and therefore would be unable to recite a blessing which references the miracle of light. The Midrash Tanchuma and many rishonim cite a textual variant which adds three additional cases in which the blind would be forbidden from performing public religious services: shliach tzibur (prayer leader), ba’al kriyah (Torah reader), and birkat kohanim (priestly blessing). We discussed many of the methodological issues related to multiple manuscripts: dealing with textual variants where the content of one entirely subsumes the other, determining which texts a particular rishon was familiar with, and deciding the legal weight of those positions that are familiar with just one of the two texts.

We then turned to the Gemara’s interpretation of the dispute between Rabbi Yehudah and the Sages. According to one beraita, the Sages respond to Rabbi Yehudah’s opinion by questioning the premise that one needs to experience something in order to be able to discuss it. As proof, the Sages cite מעשה המרכבה—the mystical chariot vision  in יחזקאל פרק א which “many have sought to expound on despite never seeing it”.

We argues that this vision is specifically referenced in this blessing is specifically referenced in this blessing, which strongly supports the opinion that the content of the prayer need not be experienced. At the end of the Talmudic sugya, however,, this view is rejected in favor of a more technical approach: Blessings  require the existence of personal benefit, and while a blind person may never have experienced light, he benefits indirectly from light through assistance he receives from others who are able to see.

Central to the discussion of the obligations of the blind is the manner in which rishonim deal with the seeming contradiction between the two different opinions of Rabbi Yehudah thus far discussed. According to one version of the beraita  in Bava Kammas cited above, Rabbi Yehudah exempts the blind from all מצות(which according to the גמראis based on a דרשה). On the other hand, Rabbi Yehudah posits an entirely different reason in Megillah which prevents only those born blind from being obligated specifically in (and fulfilling another’s obligations of) the blessing of יוצר אור.   The passage in Bava Kamma suggests that  all blind people are exempt from all comma via Divine decree, whereas the passage in Megillah suggests that only those blind from birth are exempt, and only specifically from commandments  related to seeing for technical reasons, such as their inability to fully comprehend the concept of light.

Many rishonim solve this question by positing the existence of a Rabbinic decree which obligates the blind to follow all mitzvot.  What results is that, for Rabbi Yehudah, a סומאis exempt from מצות biblically, but obligated rabbinically, and would therefore have the ability to be מוציאothers for מצות דרבנן. While this Rabbinic decree goes unmentioned by the Talmud, its existence certainly helps clarify the textual inconsistencies cited above. This allows Rabbi Yehudah to provide an additional insight with regards to the blessing of יוצר אור- that those who have never seen light are not even rabbinically obligated and therefore may not recite this blessing for another.

We further discussed the nature and impact of such a Rabbinic obligation on multiple levels. While this enactment’s exact purpose is left ambiguous by rishonim, it seems to result from the concern that a סומאmight otherwise be free from מצותaltogether and therefore lack substantive connection to the Jewish people. One fascinating, though technical, issue was the mechanism of the bindingness of such an obligation. In general, the requirement to obey the Rabbis is based on a biblical prohibition of לא תסור מן הדבר אשר יגידו לך… (דברים יז) (Do not stray from the word they tell you). If a suma is indeed exempt from all מצות מדאוריתא(mitzvot with Biblical authority), it seems difficult to claim that he would be instead bound by Rabbinic requirements. We also noted that the Rashba avoids this issue entirely by suggesting that the blind are obligated only through מידת חסידות, personal piety, to fulfill mitzvot in the Torah, a level even lower than a rabbinic enactment. This is particularly strange. The existence of a category, less obligatory than a תקנה דרבנן(rabbinic decree), yet nonetheless obligatory, seems extremely tenuous.

Based on the above, one puzzling detail in the sugya is what prompted Rabbi Yehudah to interpret the verses as exempting a suma from mitzvot only to immediately enact a Rabbinic decree accomplishing exactly the same result. This became the focus of much of our study.

The final issue discussed this week was the concept of גדול מצווה ועושה ממי שאינו מצווה ו עושה(Greater is one who is commanded-and-does than one who is not-commanded-and-does). This concept, that the commandments fulfilled by one who is commanded are more valuable than the commandments fulfilled by one who is exempt, is the reverse of the instinctive modern notion that it is better to take the initiative – to do good without first being asked.

This concept is explained by Talmudic commentators in a few different ways. One of the more basic explanations is that mitzvot done when commanded by ה׳are more significant simply because the ultimate purpose of mitzvot is the fulfillment of the will of God.  We noted an apparent inconsistency in this interpretation: if this were the case, then fulfillment of commandments by one who is exempt should not simply be less valuable, but entirely meaningless (since one is exempt did not actually fulfill the Divine Will)!  In order to explain this difficulty, some suggested dual values in the fulfillment of mitzvot, that both the fulfillment of an obligation and the action itself were independently meaningful and valuable. Based on this framework, an interesting paradox came to light: the more emphasis we place on mitzvot as valuable, independent of the obligation itself, the less crucial the question of obligation becomes, and the less we understand why Tosafot felt it necessary to claim that even Rabbi Yehudah held that the blind are Rabbinically obligated. The reverse is equally true. If we assume that mitzvot are valuable solely because they are the fulfillment of Divine mandates, then the issue of obligation becomes enormously significant, as without obligation one fundamentally lacks access to metaphysical value.

This is especially relevant when dealing with disability in Halakhah. It may very well be the responsibility of a posek to insure that those on the outskirts of society have the opportunity to live life meaningfully and act in ways that have substantive religious worth.

Shabbat Shalom!

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