by Shoshana Jakobovits and Gershon Klapper
The topic of the 2017 Summer Beit Midrash is “Mental Disability in Halakhah”. We will approach this topic through the halakhic category of שוטה (shoteh). The psukim in the Torah make no mention of שוטה as a legal status, and the Tannaïtic material may not define the condition formally. We will therefore attempt to build a framework for this category via its legal implications, having started this week with the Midrash Tanaïm and the Mishnah, and continuing next week with the Tosefta, the Yerushalmi and the Bavli.
Can we find rationales for the mitzvot the שוטה is excluded from? Maybe all mitzvot which require דעת (da’at, knowledge or understanding)? Or perhaps mitzvot which have a certain communal aspect? Are there specific halakhic realms they don’t participate in, or participate in only partially (for example testimony, marriage and divorce, or perhaps נזיקין, damages)? What are the differences between the statuses of the חרש (cheireish, deaf-mute) and שוטה as recorded in pre-Helen Keller halakhic literature, and to what extent does the traditional grouping of the קטן (katan, minor) with them have legal significance? These are some of the overarching questions we explored this week.
The Mekhilta d’Rabbi Yishmael (מכילתא דרבי ישמעאל כי תשא – מסכתא דשבתא פרשה א, 31:14) discusses the חרש ,שוטה and קטן ‘s obligation regarding at least some aspects of shabbat:
“To know that I, the L-rd, sanctify you” (Sh’mot 16): What is the intent of this? From “And the children of Israel shall keep the Sabbath” (Ibid.) I might think, even a חרש (deaf-mute), a שוטה (imbecile), and a קטן (minor) [are obligated]? It is, therefore, written “to know that I, the L-rd, etc.” I spoke only of one who has דעת.
The presumption of the Mekhilta seems to be that we would think that the חרש ,שוטה and קטן are exempt from (at least some) obligations of Shabbat. This idea in mind, one could think that the words “And the children of Israel shall keep the Sabbath” come to state that in fact all B’nei Israel, חרש ,שוטה and קטן included, are obligated in these. The Mekhilta states that the function of the words “to know (לדעת) that I, the L-rd, sanctify you” are to show that חרש ,שוטה and קטן are, in fact, excluded from the obligation since they lack the appropriate דעת.
It is interesting, and perhaps even crucial to note that there is absolutely no presumption that the people belonging to the categories חרש ,שוטה or קטן might be excluded from the category בני ישראל (B’nei Israel). In other words, the Jewishness of the חרש ,שוטה and קטן, their belonging to the Jewish people is never put into question by the Mekhilta, nor by any other source from the Midrash Halakhah and the Mishnah.
What is put into question, though, is their intellectual capability, their דעת. However, the concept of דעת is quite obscure and further questions need to be addressed: what exactly does דעת entail? Are there different kinds of דעת (i.e. knowledges of different concepts) and from which mitzvot does this criteria exempt the חרש ,שוטה and קטן?
The Midrash Halakhah excludes the חרש ,שוטה and קטן on several occasions on the grounds that they are lacking דעת; this rationale appears, for example, in the Sifrei Bemidbar (Parashat Chukat, piska 124), which deals with the placing of the red heifer’s ashes in a tahor place. The חרש ,שוטה and קטן are declared pasul for this task, since they lack the דעת להניח, the knowledge to place these ashes appropriately. It is unclear from this text whether the Sifrei deems their דעת insufficient for placing, for handling precious objects, or for placing in a tahor location. In any case, this type of דעת is radically different from the type of דעת required in the Mekhilta, which is an understanding that G-d sanctifies us and a rather abstract, spiritual notion.
Furthermore, in the Tosefta (Shvu’ot, ch. 3) the word ידע (knew, Vayikra 5:1) is taken to prove that a שוטה is unfit to testify. This type of דעת, a basic knowledge of the circumstances and content of events necessary to provide testimony, constitutes yet another type of דעת.
What seems to emerge from studying Rabbinic legal interpretations of Torah is that the שוטה is excluded from specific mitzvot because of their lack of the דעת necessary to perform those mitzvot.
Let us now move to mishnaic texts, and consider a mishnah central to the rulings about חרש and שוטה: the mishnah (Rosh Hashanah ch. 2) rules that a חרש, a שוטה, and a קטן cannot fulfill the masses’ obligation to hear the shofar by blowing it for them, citing a general precept that “All that have no obligation in a matter cannot fulfill the masses’ obligation [in that matter].” This statement, as it seems to assume that the חרש, שוטה, and קטן have no obligation to hear shofar, provides a theoretically far-reaching curb to the שוטה’s involvement in mass obligations and implies a significantly handicapped obligatory framework; the קטן is already “exempt from all commandments” (Sanhedrin ch. 8) and the חרש is presumably exempt from shofar as he is from other obligations that explicitly require hearing — “testifying” (Tosefta ch.3) and “appearing [in Jerusalem at festivals]” (Mekhilta ch. 20) — but the שוטה lacks a rationale for exemption unless he, too, is generally exempt from a category, maybe all-encompassing, of commandments into which this falls. This thesis is further supported by other mishnayot, which state that the חרש ,שוטה and קטן cannot “read the megillah [to the masses],” (Megillah ch. 2) that they cannot “sanctify [the red heifer],” (Parah ch. 5) and that they cannot “lean [on sacrifices];” (Menachot ch. 9) presumably this is because they have no obligation to hear the megillah, or purify via the red heifer, or bring sacrifices, and why but because they have preceptually limited obligations. Additionally, the שוטה is listed without rationale as exempt from appearing in Jerusalem at festivals in the mishnah, (Chagigah ch. 1) as well as in the Mekhilta (ch. 20) which outlines the specific exemptions of other categories from the commandment.
We will continue by exploring the tosefta and talmudic sources, tracking the evolution of the definitions and legal ramifications of the cases חרש and שוטה. We will delve into philosophical and technical discussions as we move towards a comprehensive framework for dealing with contemporary חרש and שוטה cases. As the חרש and שוטה — which were often distinct in early sources — converge in the mishnah, will they change again? Wherein lie the originators and resolvers of the modern conundrums confounding all and driving this summer’s SBM?