2014 Summer Beit Midrash, Week 5

Aron Rubin & Noam Weinreich

This week the Summer Beit Midrash Program completed its survey of the Halakhot surrounding the case of the “Cheresh” (deaf-mute), and thus concluded the shiurim for this year’s program.  The Mishnah treats a cheresh as equivalent to the shoteh (mental incompetent) for almost all legal purposes, meaning for example that they have no legal obligations.

Maharam Schick (19th century) was the first posek we saw deal explicitly with the case of someone who was born a cheresh and yet learned to speak with difficulty, respond to questions, and read lips. The question is whether this constitutes “speaking”, and such a person can therefore be considered a cheresh who speaks, who is treated as fully competent by Halakhah.  The standard case of a cheresh who speaks is someone who becomes deaf after learning to speak.

Maharam Schick writes that we cannot bring any proofs regarding this case from the Talmud, since the Amoraim were not aware of the possibility of someone being born without the ability to hear who nonetheless learned to speak.   He also considers the possibility that since such a person learns how to speak through physical imitation, it is not considered actual speech. He seems to conclude that since this category is a safek (in doubt), he does not believe such a person can be removed from the presumptive category of lav bar daat (non-mentally competent). We discussed in shiur whether such a conclusion implies the Maharam Schick would want this person to put on teffilin to err on the side of caution or not.

Moving along the 19th century, we looked at a responsum of the Shevet Sofer, a grandson of the Chatam Sofer. We had previously looked at a Teshuva of the Chatam Sofer discussing whether to send a shoteh (cognitively impaired) person to a non-Jewish school to learn, even though he will not enable him to keep kosher whole in the school.  Although the Chatam Sofer, according to a superficial reading, seems to say it is better to remain in the status of shoteh rather than go to such an institution, the Shevet Sofer points out he never was discussing a case of an actual Shoteh who is not obligated to observe the mitzvot, and so that specific person did not need the academy in order to become a Bar Chiyuv, obligated. In the case the Shevet Sofer is dealing with, where the academy would effect a change in the status of this deaf-mute from unobligated to obligated, he is willing to place him in such an institute. He seems to frame the conversation in terms of the value of making someone fully obligated in Mitzvoth. This seems to show the Shevet Sofer believed it was important that those who can become obligated in mitzvoth should be.

We next saw the groundbreaking responsum of Rav Azriel Hildesheimer. He discusses three potential approaches to someone who was born a cheresh and afterwards learned to speak. The first option is they are able-bodied in every respect and are considered like any other speaking person who is deaf; the second option is that they are still considered a cheresh and not chayiv in Mitzvot; and the third option is we are in doubt as to this person’s status, and therefore we decide stringently. He goes through the various opinions of the previous century, and which of the three approaches they take. Rav Hildesheimer discusses his personal encounter with the academies for the deaf and mute, and how amazed he is at the level of intelligence displayed by the students, and how he is sure they are mentally competent, and he comments that Chazal must not have encountered this possibility, which explains why they did not discuss it. He also comments that we need to approach each individual separately, since some people born mute and deaf do not become mentally competent. It seems that it was obvious to Rav Hildesheimer that people who are so competent, as the students at the deaf-mute academies were, must be obligated in mitzvoth.

We then moved on to the 20th and 21st centuries. We noted  a Teshuvah by Chief Rabbi Herzog who largely agrees with Rav Hildesheimer.  We then moved to a teshuvah by Rav Benny Lau, where he responds to a rabbi who asks him about a cheresh who could speak read lips very proficiently, who was to be one of the Edim (witnesses) for a wedding. Rabbi Lau responds by going through the history of Halakhic decisions regarding the cheresh, and attempted to construct a historical narrative where the perception of a cheresh shifts over time. We thought several of his readings were difficult, and that the historical progression was not as clean as he presented it. However Rabbi Lau’s main thesis that the modern day reality for a cheresh is very different form the one Chazal lived in, and this reality has a profound impact on modern psak.

We then looked at a famous court case in Israel about a deaf and mute woman who was capable of sign language, and wanted to convert. The court rejected her request, with one of their main contentions being that sign language does not qualify as “speech”. Rabbi J. David Bleich responded to this court decision, and while he did not deal with the particulars of whether sign language constitutes speech, he does say that if a Cheresh is capable of any speech whatsoever, then they are no longer considered in a category of Cheresh.

Rav Meir Twersky, in a public shiur for YU’s Kollel Yom Rishon, assumes that a cheresh remains legally incompetent nowadays – he does not even mention the possibility that the Halakhah has changed in that regard.  He does acknowledge that this Halakhah seems in conflict with our experience of educated deaf-mutes, and sets out the options as follows:

  1. You could say that the status of a cheresh is based on lack of daat (the mental competence necessary for legal obligation) and is a reflection of reality, and Chazal knew something about the interiority of even educated deaf-muted that we don’t know.
  2. Chazal knew something about the daat of deaf-mutes that we can reconstruct, even though we would not perceive it independently.
  3. The status of deaf-mutes is simply a gzeirat haKatuv, a Biblical decree whose rationale is not humanly knowable. The problem with this position is that we have no record in the Tradition of any Biblical source for the status of a cheresh.

Rabbi Twersky quotes Rav Shlomo Zalman Auerbach as taking approach 1 and Rav Zalman Nechemiah Goldberg as taking approach 3.  Rav Twersky himself ends up taking the second approach and explains that daat is not about intellect but rather about awareness and the ability to communicate with others. One who is not able to hear has a lack of awareness and connection to one surroundings.

R. Klapper questioned whether R. Twersky was obligated to at least mention the positions that the status of cheresh had changed.  He worried that the purpose of the shiur was to prevent the audience from considering such positions, and one Fellow cited a published article by Rabbi Twersky in which he mentioned the status of deaf-mute in the context of a broader ideological argument about the nature of descriptive Talmudic statements with normative implications.  Rabbi Twersky argues, following one understanding of his grandfather the Rav, that all statements in Chazal about human nature are descriptions of metaphysical human nature and true for all time and unchallengeable by evidence from science or experience.  He therefore believes that Halakhot based on such statements cannot be changed on the basis of an argument that either reality or our understanding of reality has shifted.  Rabbi Klapper thought that he nonetheless had an obligation to mention the opinions of the great poskim of the past who apparently disagreed, at least with regard to this specific issue.

In any case, the opinion of Rav Shlomo Zalman is not clearly that assigned to him by Rabbi Twersky.  His published responsum (Minchat Shlomoh 1:34) is a composite of two letters written to two different rabbis in response to their separate questions.  In the first part, Rav Shlomo Zalman says that  Chazal must have understood something that we cannot understand, but it is difficult to apply this halacha l’maaseh since charashim should be bnei daat nowadays.  He adds that if he can speak slightly, then he is a bar daat. If only people that are used to being around him can understand his speech, then he isn’t sure if he is a pikeach.

In the second part, written to Rav Sheinberg, he concludes that while it is very difficult to decide definitively an issue that great decisors have written about at length, but it would also be very difficult to rule that people who appear fully competent should be “pushed away from fulfillment of mitzvot”.

Rabbi Klapper suggested that properly understanding Rav Shlomo Zalman’s position  requires taking both parts of his teshuvah into account.  His guess was that in practice Rav Shlomo Zalman would refuse to eliminate the category but at the same time would severely limit it and make it difficult to apply in any specific contemporary case.

What about Rav Zalman Nechemiah Goldberg?  He does say that there is a gzeirat hakatuv that a cheresh doesn’t have daat.   But he brings this up in a different context.   Rav Goldberg is primarily discussing the status of a peti (people with mental disabilities) and whether they can get married. If a cheresh has limited mental capacity, then we have to extrapolate from them to someone with Down’s Syndrome (peti), since we know that they can’t have more daat than a cheresh, which would prove that a peti doesn’t have daat and must be treated like a shoteh, who cannot marry at all. So he argues that the status of a cheresh is merely a gezeirat hakatuv and indicates nothing about the daat of a cheresh.  R. Klapper suggested that R. Zalman Nechemiah might have very different things to say, and novel solutions to offer, when he addresses cases of cheresh directly.

So in the end both Rav Shlomoh Zalman and Rav Nechemiah in practice seek to avoid excluding people with disabilities from the worlds of ritual and ritualized relationships.

In an excursus, R. Klapper noted that sometimes we need to say that a rule is a rule (lo plug), but that we also sometimes need to find ways to make exceptions when the rule has very unfortunate consequences.  Rambam says that the laws of the Torah are like laws of nature, and so they are good for most people most of the time. Does this mean that if you are a scientist, and people are affected by tsunamis, that should you tell them that they should just drown because nature is good?! No, you try to find a way to save them.  The same is true with halacha. It is usually good for most people most the time, but in a case where it is hurting people, it is the job of a posek to try and save them. Halacha says that you need to give a get, but if a husband is using that against his wife, then you need to find ways to force him to give it to her. But not having the law leads to much more injustice.

At what point does a lo plug break down because there are so many exceptions and people are just finding exceptions because the rule is no longer a good rule?

What happens if the rule was made when one could not tell which case should really be exceptions, and now we have a way of telling?  What if circumstances have changed so that there are now more exceptions than cases to which the rule should really apply?  Does this mean that rishonim who argued lo plug would now argue differently? It is hard to just throw away the rule. Many poskim just show that everyone is an exception. Is there an argument to say that there used to be a lo plug (since we didn’t know how to discern between one cheresh and another) but now there isn’t?  We could create another category that is outside the law. We could just say that the exceptions, because they have some capacity for speech and/or other abilities to communicate,  are considered cheresh hamedaber v’eino shomeia (who speaks but does not hear).

In the next shiur, we noted Rabbi Daniel Feldman, who cites a somewhat different roster of decisors who held the options outlined by Rav Hildesheimer.  Rabbi Feldman also provides a way to reconcile the positions that take modes other than speech as implying legal competence with the passage on Gittin 71 that seems to say that the capacity to communicate in writing is not sufficient evidence of competence, and to read a problematic Rashi in a way that allows for the possibility of someone born deaf nonetheless attaining legal competence.

An article by Dr. Yisroel Barma in Techumin suggests that the category of cheresh that existed in the time of Chazal is an oversimplification that we can break down. If it is about lack of daat like shoteh, we now know that there are different types of Charashim. Some have processing gaps that perhaps make them like a shoteh, in that their disability is in the brain, whereas others have deafness that results from sensory issues and are unrelated to shoteh.

However, if you assume that the lack of hearing is the problem, then this doesn’t matter and they would all be charashim.

We concluded the last shiur with a discussion of an article by Rav Elisha Ancselovits  in Techumin.  We noted that his approach is very similar to Rav Twersky’s, but that since he does not share Rav Twersky’s general assumption about the nature of Talmudic statements, he reaches almost entirely opposite halakhic conclusions.

Rabbi Ancselovits assumes that Chazal’s statement that a cheresh didn’t have daat must have made sense, i.e. cohered with the available evidence, in their own time.  Since Gittin 72a says that writing is not sufficient to demonstrate daat, it must be that the cheresh‘s lack of daat is unrelated to intellectual acuity.

He offers two ways to reconcile Gittin with our own experience of competent deaf-mutes.  The first is that the gemara in gittin only applies to someone who used to hear and then became deaf and mute;  the fact that he can only write now, shows that he has lost a significant mental ability, and this undercuts our presumption of competence.  This would not apply to someone who was always deaf.

He then notes that there is a contradiction between the Mishnah in Gittin that says that nodding is considered speech for a mute, and the beraita on 72a that says that writing doesn’t count as speaking (for a cheresh). Rambam and baalei tosafot both explain that the difference is between a cheresh (for whom both writing and body language don’t work) and ilem (mute) (for whom they both work). But the second answer in Rosh is that body language is actually stronger than writing and is considered a form of language. Based on this assumption, Rav Ancselovits argues that a cheresh who can communicate through sign language alone is considered a cheresh hamedaber, a speaker,  since sign language is considered a language.  He further argues that, as noted above, the status of a cheresh was not the result of an intellectual lack, but rather of a social lack – not enough people to communicate with.  Now that Sign is broadly spoken, and deaf people can communicate with many people in many ways (he does not even mention email and texting), it should be clear that a cheresh in our day can be a full bar daat and therefore bar chiyuva.

He then goes much further and argues that sign language can also count as public reading and recitation for a variety of ritual purposes, for example that a signing shaliach tzibbur would work for a congregation that understood Sign.

Several of Rabbi Ancselovits assumptions are certainly open to question.  For example, even if one follows Rosh unequivocally, it is not clear that sign language should count as “nodding” rather than “writing”.  Furthermore, like Rav Twersky, he has no evidence for his explanation of the status of a cheresh in the time of Chazal other than his need to reconcile it with his commonsense impression that it no longer applies today.  Finally, his move that sign language is not only evidence of competence, but considered actual speech for many other purposes even where writing is insufficient, requires a radical definition of the category that was not articulated in the precedents.

This concluded Rabbi Klapper’s lectures, and Friday morning we were given the question to which we will be writing responsa.

Shabbat Shalom!

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