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.