Week Four Summary of SBM 2017

by Avraham Fast and Davida Kollmar

Who is a shoteh, and what is his or her level in chiyyuv mitzvot? What is the religious or halakhic value of Mitzvot performed by an eino metzuveh ve’oseh, someone who is not commanded but does the Mitzvah anyway?

We began with a responsum by the Chatam Sofer (Chelek 1 Orach Chaim Siman 83). His case is of a boy who can speak but does not understand what he is saying, and in general seems to have weak daat. Doctors suggest that he be sent to a school where he will learn enough to be a functional member of society, but would have to eat non-kosher food. Feeding a minor non-kosher food is generally prohibited. Does sending the boy to a non-kosher institution violate this issur, and if so, is the acquisition of daat worth the violation? The questioner argued that it should be allowed, because transforming the boy from a shoteh to one chayyav in mitzvot is a sufficiently important purpose.

The Chatam Sofer says that if the boy is a shoteh and is patur from mitzvot, then he could go to the school, so that in the future he would be able to keep many mitzvot. He initially compares the case to someone stuck in the desert who has lost track of which day is Shabbat. Such a person must observe Shabbat in full every seventh day, and for the other six can only do melakhah to the extent necessary for parnassah. Nonetheless, he may travel as far as possible each day, despite the techum Shabbat, in order to return to civilization and to keeping Shabbat in full on the correct day. However, he concludes that the cases are different because the child is patur min hashamayim so there may not be a halakhic incentive to make him chayyav.

Chatam Sofer qualifies his heter, by saying that if someone was not quite a shoteh and was still obligated in mitzvot, it would be better not to send him to the school rather than to make him a wicked person. His final halakhic statement is that the boy should leave the school once he turns thirteen, presumably because he believed the child would in fact become chayav then. He adds that although it’s technically allowed to send the boy to the school until bar mitzvah, it is better not to send him, because of the negative metaphysical impact that eating non-kosher will have on the boy, even if this means he will remain a near- or quasi-shoteh.

Rav Moshe Feinstein (Orach Chaim Chelek 2 Siman 88) builds on the argument of the Chatam Sofer. In his case, a girl is a shotah and her father’s health is failing because of the stress of caring for her. Rav Moshe argues that it is even clearer to have a heter in her case, because she is a complete shotah, and the Chatam Sofer’s reservations only apply to someone who is barely a shoteh. Additionally, because this girl is a complete shotah, there is no need to remove her from the institution once she physically matures. He also contends that the metaphysical argument does not apply, because she will never become mechuyyevet in mitzvot. The danger to the father is another reason to be lenient.

We then discussed the value of mitzvot done by a person who is not obligated. Maharam Schick (Orach Chaim Siman 269) discussed the question of whether a boy who becomes bar mitzvah during the days of sefirat ha’omer can count with a brachah. He initially states that a mitzvah done before one is obligated cannot exempt one from an obligation that takes effect later. This is because an action done by an obligated person is greater than that done by someone who is not obligated. An action done as a minor, therefore, cannot fulfill the obligation of the same person when he becomes an adult. However, Maharam Schick continues that since a katan is a bar daat, but just isn’t commanded until he’s older, his actions still count as a mitzvah to the extent that he gets reward like an eino metzuveh, rather than having his actions not count for anything. Therefore his actions have enough meaning to consider his counting “complete”, and he can make the brakhah.

We then discussed a case in the Israeli Rabbinic Court (Chelek 10 p 193) of a deaf-mute woman who wanted to convert. Rav Zimbalist argues that she cannot convert – she is categorically considered to not have daat, so she cannot fulfil the condition of accepting the mitzvot. This is unlike the conversion of a child, which works because the child will be able to accept mitzvot once he/she grows older. This is also different from converting a shoteh slave, who only requires a lack of protest. Rav Daichovski disagrees and thinks that either this woman has daat, in which case she can accept mitzvot, or else she does not have daat, in which case she is the perfect convert, since she can never sin!  The acceptance of mitzvot is not necessary for her to convert if she will never become chayyevet. A central point in the judges’ disagreement is whether there is value in conversion for someone who will be patur from all mitzvot. The final decision of the court follows Rav Zimbalist.

We then looked at Rav Shternbuch (Teshuvot VeHanhagot Volume 4 Siman 233) who discusses the conversion of a blind person. He states that a person with daat who is patur from mitzvot is still obligated in emunah. An acceptance of the obligation of emunah is enough for the conversion of such a person.

The Lehorot Natan (Chelek 1 Siman 25) analyzes the position of Maharam Schick. He makes a distinction between a katan and a shoteh: mitzvah acts have significance for a katan, but not for a shoteh. However, the Lehorot Natan does not give a rationale, so we don’t know how narrowly we can apply this rule and how easily we can make exceptions. He also quotes the Eglei Tal, who says that while the machshava of a katan does not take halakhic effect in regards to others, it does so in regard to the katan himself.

In another Teshuvah (Yoreh Deah Chelek 2 Siman 8), Rav Moshe Feinstein states that there are two possibilities for understanding the obligation for a katan:

  1. He is in the category of those who have accepted the Torah, but his chiyyuv won’t kick in until he becomes an adult. So he’s an eino metzuveh.
  2. He is not in the category of chiyyuv at all, but by doing an action he shows that he’s a ben daat for this action, and therefore he gets reward like a mitzuveh. A katan is technically chayyav, but he’s patur because he’s an anoos. What comes out of Rav Moshe is that he assumes Hashem gives reward to ketanim. Would the same apply to shotim?

In an article (Kovez Torani Im HaTorah 2nd Edition Volume 2), Rav Moshe writes about children who are peta’im. He says that as long as they have daat like responsible children, there’s a responsibility to educate them, although he opposes spending communal money on them disproportionately; such monies should be raised from private contributions. His opinion was likely progressive at the time. He argues that there’s a category of children who have a level of daat such that they have a chiyyuv but are anoos for all mitzvot. Therefore their parents should try to prevent them from doing aveirot, but they themselves are not responsible.

We concluded the week by reading the responsum on “A Community Bar Mitzvah Celebration for a Child with Cognitive Disabilities” produced by the Israeli organization Beit Hillel. It is interesting to note that this Responsum was co-authored by male and female Torah scholars.

The authors write that the climax of the Bar Mitzvah ceremony is when the boy is called up to the Torah, an act that symbolizes entry into adulthood. From then on, he also participates in communal prayer and becomes responsible for passing the Torah’s teachings on to a new generation. The questions are whether a mentally handicapped boy can go through this same teaching process and whether his family feels that the 13 years of education he received bore fruit as he becomes an adult member of the community. The document uses halakhah and the spirit of the halakhah to try to respond to these questions.

The first step is to adopt a fundamental approach that states these boys have the right to celebrate their Bar Mitzvahs in our communities as part of us. When the boy’s condition does not allow him to celebrate his Bar Mitzvah like other boys, a customized and meaningful solution must be found for him. There is no obligation to have the ceremony when the boy is exactly 13 years old.

Spiritual leadership should stress the important Torah value that every human being was created in God’s image. The active and positive participation of a spiritual leader in the integration of an individual with mental disabilities may determine the boy’s religious future and his connection to Jewish tradition and practices.

To keep the Torah commandments, one must have daat. This excludes the katan and the shoteh. According to the poskim, a shoteh is an adult who suffers from a mental illness that clouds his cognitive functions. A person with a mental-developmental disorder may be a shoteh or a peti (simple-minded). Is a peti or a shoteh required to keep the mitzvot? Rambam and the Chatam Sofer say boys should be assessed on a case per case basis.

The authors conclude by quoting an inspirational passage from Isaiah:

Strengthen weak hands, and make firm tottering knees … Then the eyes of the blind shall be opened, and the ears of the deaf shall be unstopped.

It is unfortunate, however, that the passage does not mention the shoteh, peti or the person with cognitive disabilities.

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Place and Displacement

This week’s alumni Dvar Torah is by Elliot Salinger

Moshe’s final speech to Benei Yisrael in Parashat Devarim possesses several remarkable features.

First, in describing Benei Yisrael’s journey from Mitzrayim through the desert, Moshe chooses to begin his address not at the story’s beginning but at its middle: ה’ א-להינו דבר אלינו בחרב לאמר: רב-לכם שבת בהר הזה. (Devarim 1:6). Moshe’s narrative begins with God’s command that Benei Yisrael leave their place, mirroring the narrative displacement of the events that follow from their proper order in the temporal sequence. Moshe narrates the story of chet ha-meraglim, then Benei Yisrael’s encounters with other nations in Transjordan, and finally the settlement there of Reuven, Gad, and chatzi shevet Menasheh. It is not until 4:10, in Parashat Vaetchanan, that Moshe describes Matan Torah, the events immediately prior to the departure from Sinai. Why does Moshe begin his speech in medias res?

Second, Moshe’s speech is punctuated by asides that offer information about other peoples and places mentioned in Moshe’s narrative. The first such aside comes after Moshe recounts how God warned him not to attack Moav, since God gave it to the descendants of Lot as yerushah. This triggers a rather odd aside about the history of Moav and Se’ir:האמים לפנים ישבו בה עם גדול ורב ורם כענקים. רפאים יחשבו אף הם כענקים והמאבים יקראו להם אמים. ובשעיר ישבו החרים לפנים ובני עשו יירשום וישמידום מפניהם וישבו תחתם… (Devarim 2:10-12). Abrupt in the narrative, these pesukim seem discontinuous with Moshe’s speech. In fact, they seem to be written not in Moshe’s voice, but in the voice of the Torah’s Narrator, like .אלה הדברים אשר דבר משה אל כל ישראל The Torah similarly notes the history of the next people that Benei Yisrael encounter, Amon, which was also yerushah to Lot’s descendants:ארץ רפאים תחשב אף הוא רפאים ישבו בה לפנים והעמנים יקראו להם זמזמים עם גדול ורב ורם כענקים וישמידם ה’ מפניהם ויירשם וישבו תחתם. כאשר עשה לבני עשו הישבים בשעיר אשר השמיד את החרי מפניהם ויירשם וישבו תחתם עד היום הזה (Devarim 2:20-22). And finally, after the victory over Og is discussed and Benei Yisrael’s control of the land between Nachal Arnon and the Chermon noted, the Torah writes,צידנים יקראו לחרמון שרין והאמרי יקראו לו שניר. כל ערי המישר וכל הגלעד וכל הבשן עד סלכה ואדרעי ערי ממלכת עוג בבשן. (Devarim 3:9-10). Why does the Torah insert these seemingly irrelevant details into Moshe’s speech?

Third, in Parashat Devarim the Torah’s narrative voice often sounds as if it were spoken far after Moshe gave his speech in Arvot Moav. To use a (perhaps strained) contemporary analogy, the Torah’s narrative voice sounds less like that of a journalist providing background to a recent speech than that of a historian providing scholarly commentary on an already famous address. The Torah’s narration engenders this literary distance in three places, two of which were noted by Ibn Ezra. The first instance comes in the Torah’s locating Moshe’s speech בעבר הירדן, a Cisjordanian perspective on Benei Yisrael’s encampment. Ibn Ezra (to 1:2 s.v. achad asar yom) links this phrase with others in the Torah (the famous “סוד השנים עשר,”) including the pasuk that concludes the aside about Og:כי רק עוג מלך הבשן נשאר מיתר הרפאים הנה ערשו ערש ברזל הלה הוא ברבת בני עמון תשע אמות ארכה וארבע אמות רחבה באמת איש (Devarim 3:11). This pasuk, the second instance of distancing, seems to reflect a temporal rather than merely geographic remove from the setting of Moshe’s address. Finally, the third instance is found at the close of the first aside we considered above, concerning the history of Se’ir. After noting how the descendants of Esav dispossessed Se’ir’s previous inhabitants, the Torah concludes,כאשר עשה ישראל לארץ ירשתו אשר נתן ה’ להם )Devarim 2:11). Why does the Torah write at a distance from the speech it records?  

I’d like to propose that these literary features serve to reinforce prominent themes of Moshe’s speech. Let us begin with the first feature we noted above, the displacement of מעמד הר סיני in Moshe’s narration. When  מעמד הר סיניis mentioned, it appears not as merely another event that occurred in the desert, but rather within the context of exhortations to follow the Torah:רק השמר לך ושמר נפשך מאד פן תשכח את הדברים אשר ראו עיניך ופן יסורו מלבבך כל ימי חייך והודעתם לבניך ולבני בניך יום אשר עמדת לפני ה’ א-להיך בחרב (Devarim 4:9-10). In postponing the discussion of מתן תורה, Moshe emphasizes that מתן תורה was not simply an event with a beginning and end in historical time. It rather provides obligations continually, even to those who did not witness it.

The removal of מעמד הר סיני from the linear sequence to highlight its moral significance dovetails with the temporal and spatial dislocations within the Torah’s narration. Both serve to highlight the continual significance of the events in Moshe’s speech to future generations of Benei Yisrael living in Eretz Yisrael. These early perakim of Sefer Devarim oscillate between the perspective of the midbar prior to the conquest and the perspective of Eretz Yisrael years after. They collect events and facts from different places in time and space, engendering a perspective above historical time.

What is the supra-historical message that the Torah wishes to convey to us? The same message that Moshe wishes to convey to Benei Yisrael: that their presence in Eretz Yisrael is contingent upon their observance of the Torah. It does not take Moshe long to begin recounting chet ha-meraglim and the ma’apilim, those who did not understand the total dependence of Benei Yisrael’s existence in Eretz Yisrael as a function of their obedience to the Divine Will. And to underscore this message, Moshe punctuates his account with comments and laments concerning his own inability to enter the Land. In fact, Moshe’s beseeching God to allow him to enter Eretz Yisrael at 3:23-29, the start of Parashat Vaetchanan, marks the end of the historical narrative proper and the transition to discussing מעמד הר סיני.

The asides serve to remind the Torah’s readers of that space and time—future generations in Eretz Yisrael—whose fate depends on heeding Moshe’s message. If they disobey the Torah, they will be removed from their homeland and exiled. It is thus especially appropriate that the asides, which create a sense of literary displacement and dislocation, largely discuss the displacement and dislocation of other peoples by the nations whom Benei Yisrael have dispossessed. Just as other peoples were dispossessed, and just as Benei Yisrael dispossessed others, so too may Benei Yisrael themselves be dispossessed:כאשר עשה ישראל לארץ ירשתו אשר נתן ה’ להם.

May we merit this Shabbat Chazon and Tisha Ba’av, as we mourn our own displacements and dispossessions, to remember the lessons of Moshe’s speech.

Elliot Salinger (SBM ’12, ’14), a graduate of Princeton University, will begin an MPhil in Philosophy at the University of Cambridge this fall.

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Week Three Summary of SBM 2017

by Ben Kaplan and Doniel Weinreich

Our exploration of the halachic issues surrounding the mentally ill and mentally disabled moved this week from the Tannaim and Amoraim to rishonim and acharonim, often through the prism of Sh’eilot Ut’shuvot.

Defining the halakhic category of the shoteh requires one to extrapolate from the specific halakhic contexts discussed by the Tannaim and Amoraim. While numerous relevant points are made in multiple sugyot in the gemara with regard to the halachic status of shoteh, they are limited to specific halachic contexts and extrapolations must be made to define the boundaries of the general halachic category of shoteh. As an example, the gemara in Gittin 22b concludes that a shoteh can write a get with Jewish supervision, which opens the door for shotim to perform multiple mitzvot while under Jewish supervision.

The Rambam’s formulations regarding shoteh differ in some significant ways from the sources in Chazal he draws upon. In Hilchot Eidut (9:1, 7-12), the reason Rambam gives for shotim’s exclusion from legal testimony is that they are not b’nei mitzvot. He omits any reference to their lack of daat, as is pointed out by the Lechem Mishnah. The term “b’nei mitzvot” is also defined quite liberally by the Radbaz as meaning that shotim are einam m’tzuvim v’osim (uncommanded actors) for all mitzvot. This formulation of the Radbaz could serve as a sweeping basis for giving halachic value to any mitzvah a shoteh performs.

The sources we have discussed thus far come to play in the shu”tim that directly deal with the practical treatment of shotim in a halachic context. In his shu”t, the Halachot K’tanot takes a morally radical stance on the issue by posing the questions of of whether or not one incurs the death penalty for killing a shoteh (2:37) and whether one may violate Shabbat to save the life of a shoteh (2:38).

In essence, the Halachot K’tanot is debating whether or not a shoteh has the status of a halachic Jewish human and concludes that he does not, drawing a kal v’chomer from t’reifah, who is still chayav in mitzvot despite not being considered fully, to prove that killing a shoteh is not a capital crime. While he attempts to use a mystical explanation to confirm the shoteh’s human value in the case of lifesaving on Shabbat, he ultimately dismisses it as non-halachic.

The Maharil (Shu”t Maharil 196) on the other hand, views a shoteh as a complete halachic Jew in body, disagreeing with the Halachot K’tanot in both instances. As halakhah has moved forward, the opinion of the Maharil seems to have been adopted as the halachically normative and morally superior view.

The Rabaz (Shu”t HaRabaz 3:48) responds to a proposition of Rabbi Shlomo Kluger that a katan’s actions only lack halachic consequences because k’tanim don’t possess daat. According to Rav Kluger’s definition, a minor who knows all of Torah would be halachically considered an adult and would be able to perform halachically consequential actions.

The Rabaz starts by making a fundamental distinction between being exempt due to not being bar mitzvah and being exempt due to not being bar daat. Is it the case that cheireish, shoteh, and katan are fundamentally excluded from the category of commandedness, or are they formally included but exempt from certain mitzvahs due to their lack of daat?

He notes that Mishnah Chullin 1:1 states that their sh’chitah is acceptable if it was performed under supervision while a gentile’s is not.  The Rabaz explains this challenge by citing the Shach (YD 1:27), who says that since it is still forbidden for a cheireish, shoteh, or katan to be fed n’veilah (meat from an animal that died from a cause other than sh’chitah) —whereas it’s permitted for gentiles—the commandment of sh’chitah is fundamentally relevant to them. Therefore, even if they are not themselves commanded, they may still perform sh’chitah under certain circumstances.

The Pri M’gadim (OC Petichah Kol’lot 2:3) makes a different distinction, claiming that a katan is ontologically in the parshah of mitzvot, but not all mitzvot. There are some mitzvot that they are not subsumed under at all, and others that they are—but from which they are nonetheless exempt from due to their lack of daat.

In the end, the Rabaz adopts the position of the Minchat Chinuch, who claims that k’tanim are not b’nei mitzvah at all, and not just because they lack daas. He therefore rejects Shlomo Kluger’s proposition.

We then looked at a t’shuvah of the Shoel Umeishiv (1:30) regarding whether one has to perform pidyon haben for a cheireish. He responds in the affirmative, even though he acknowledges that they are not chayav in mitzvot. This is because he thinks they have prerogative to do mitzvot even if they are not chayav in them.

This is contrasted with a teshuvah of the Yehudah Yaaleh (2:93), who aligns more with the view of the Halachot K’tanot. He makes use of midrash to claim that a shoteh can’t do mitzvot because those without daat are halachically comparable to animals.

In Hilchot Korban Pesach (5:7), the Rambam says that a katan on Pesach Rishon who becomes a gadol before Pesach Sheni would need to bring a korban pesach, but if a korban was brought for him on Pesach Rishon, then he doesn’t. The Kesef Mishneh asks how this can possibly be so, based on the gemara in Rosh Hashanah, which says that if someone eats matzah while they’re a shoteh and then they recover, they haven’t fulfilled their obligation. How could someone be able to fulfill their chiyuv in korban pesach while they’re not chayav?! The Kesef Mishnah answers that the pasuk explicitly includes k’tanim when it says to bring a korban for your entire household.

But Rav Chaim Brisker takes issue with this answer, because there’s a gemara which says that the verse including minor children is only used homiletically, and really they’re included only under Rabbinic law, not Torah law. Rav Chaim instead makes a series of fine conceptual distinctions to explain this Rambam. He starts by claiming that even though they can’t be chayav, a cheireish, shoteh, or katan are still somehow in the parshah of korban pesach.

According to Rav Chaim, a korban pesach involves an action, and it’s possible that that action being done is enough to exempt a katan, even if they haven’t fulfilled the mitzvah. He then further states that it might even be possible for them to fulfill the mitzvah, because the mitzvah is dependent on the transformation of an object (the animal) into a korban, after which the mitzvah is fulfilled automatically. This suggests that even if someone isn’t chayav and can’t do the action, they could still be included in the fulfillment of the mitzvah.

However, Rav Chaim ends up limiting this conceptual framework exclusively to the korban pesach. He concludes that the verse is homiletic with regard to treating children as obligated, but that it does generate a Torah-law principle that they can nonetheless be included in a group that will bring a Pesach sacrifice, and this is sufficient to explain the Rambam. This may mean that children’s or shotim’s actions have no halakhic significance in other areas.

The B’er Moshe (Binyan Yersushalayim 18), who lived in the nineteenth century, also explored the issue of the halachic status of shoteh in his responsum to a beit din who asked about a man who had given a get to his wife but who had allegedly showed signs of being a shoteh.

In order to permit the man’s wife to remarry, the B’er Moshe seeks to read a distinction into the Rambam in hilchot eidut between a complete shoteh and a peti. He writes that there is a safek as to the status of the peti’s daat, but that the presence of daat can be recognized through his actions. Based on this distinction, he claims that while a peti may be ineligible for eidut since being a witness is “actionless”, any action that he can be guided through by beit din is viable halachically. This would include the halachic act of divorcing. This method would theoretically work in any area of halachah with any shoteh whose actions could be guided properly.

There are many issues with the B’er Moshe’s formulation. Firstly, there is no evidence that the shoteh understands what is going on just because beit din is walking him through the actions. Secondly, his classification of eidut as an “actionless” mitzvah is based on the formal legal classification of the prohibition against false testimony, and may have no proper relevance to the substantive question of whether action can demonstrate intent.

The B’er Moshe himself ignores these issues. However, he nevertheless ends up rejecting his own formulation. He discovers that Rambam states that gentile children and shotehs are not punished. This suggests that Rambam did not distinguish between eidut and other mitzvot. Instead, the B’er Moshe concludes that a shoteh cannot give a get or get married and does not even fall into the halachic category of “man.” While the suspected shoteh in question is ultimately deemed sane on the basis that he is merely suffering from an “overabundance of black bile”, the overarching question of how to treat a shoteh remains. While the B’er Moshe rejects his own liberal formulation of what halachic actions a shoteh can take, it can be argued that the formulation may still be used as a basis for a standing definition for shoteh moving forward.

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God Marks the Signs to a Place of Refuge

This week’s alumni Dvar Torah is by Hillel Katchen

The laws of the rozeach b’shogeg, the accidental murderer, are famously hard to digest. In one possible formulation: on one hand, the Torah allows the Goel Hadam to avenge and redeem the loss of his family member, a unique allowance. On the other hand, not only does the Torah mandate that Arei Miklat be set up in which the Goel Hadam is not allowed to murder the accidental killer, but the category of rozeach b’shogeg is excruciatingly narrow to the point that sometimes one wonders how often the requirements might ever be truly satisfied.

In this context Bemidbar Rabba (23:13) compares the laws surrounding the exile of the accidental killer to an Ir Miklat to Adam and Hava‘s exile from Gan Eden. On the face of it, it would seem that this is an odd comparison: The text of the Torah itself both in Shemot 21 and in Bemidbar 35  calls the Arei Miklat places the accidental killer is “nas” flees to, from harm, whereas the concern with respect to Adam and Hava is that if they spends too much time in Gan Eden, they may end up eating from the Etz HaHayim and live forever, which is apparently cannot be allowed to happen, so they are exiled in order to preserve their mortality, seemingly as a punishment.

The nature of the comparison itself in the midrash is even more odd. The midrash submits that technically, as the text in Bereishit says as well (2:17), Adam and Hava were supposed to die as a punishment. Why? Because their sin had made humans mortal, and for the sin of laying the groundwork of all future death, Adam and Hava were to die that very day. God, however, had mercy, and instead of punishing them with death, he exiled them from Gan Eden. Similarly, the accidental murderer does not deserve death but because the Goel Hadam, despite this, is allowed to kill the accidental murderer, God makes sure that there are laws that the signs to Arei Miklat are clearly marked so that the accidental murder may more easily take refuge from the Goel Hadam.

The axes of the comparison do not seem to line up. Adam and Hava were supposed to die but God has mercy on them and they did not die. This makes sense. The accidental killer, however, the midrash states explicitly, is not liable to be executed, so what form of “mercy” is God exactly displaying by keeping him safe?

It would seem that the common thread running through these narratives is that the natural world is random and unsafe, and God is the one who redeems us from this unsafe existence. It is fitting and natural that Adam and Hava, who allowed death, should rapidly die – but God’s mercy does not allow it. Similarly, yes, it is truly hard to understand the very existence of the Goel Hadam. He is allowed to act on some jarring combination of vigilante justice and family honor, but in the natural state of things, such actions, or at the very least, the wishes of the family to carry out such actions, seem to be very natural. How fitting, then, that the accidental murderer, who was not purposeful and caring enough in his actions to the point that another died, ends up in a wayward existence in which the natural world (the Goel Hadam) is potentially fatally unsafe for him, save for the mercy of God, who makes sure the signs are marked to a place of refuge.

Hillel Katchen (SBM 2004) lives in Jerusalem with his family and works as a lawyer.

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Week Two Summary of SBM 2017

by Joshua Blau and Avi Hirsch

The category “shoteh” can be used to cover all beings whose bodies are halakhically human and Jewish but who are halakhically limited because of mental illness, disability, or deficiency.  We set out this week to refine this halakhic category by analyzing the term’s appearances in the Tosefta, Talmud Yerushalmi, and Talmud Bavli. The resultant taxonomy shows that the category of shoteh applies differently to various classes of halakhic actions with diverse results.

We identified four classes of halakhic requirements relating to the shoteh. Note that in most circumstances halakhah puts the shoteh, the katan (halakhic minor), and the cheresh (deaf-mute, whom most Rabbis regarded as presumptively lacking full mental capacity) in the same legal basket. These four classes are:

  1. Actions that he/she can perform simply because his/her body is deemed halakhically human and/or Jewish
  2. Actions regarding which a shoteh can be granted independent halakhic credibility
  3. Actions regarding which a shoteh can be granted halakhic credibility if performed under the surveillance of a fully competent person
  4. Actions from which a shoteh is entirely excluded.

An example of a halakhic action that seems to only require having a Jewish body and thus can be performed by a shoteh (Tosefta Yevamot Chapter 11) is yibum (levirate marriage). It is clear from the mechanics of yibum that no mental capacity is necessary for the fulfillment of this mitzvah. This contrasts with kiddushin (betrothal), which indeed requires da’at (intellectual capability) and thus cannot be performed by anyone who lacks this quality. This example raises the moral question of how halakhah conceives of and structures the ideal sexual life of a shoteh, given their effective inability to marry outside of the context of yibum.

An example of a different class of actions that can be accomplished by a member of one of the categories of disability is the supervision of the processing of taharot (ritually pure items) by charashim (deaf-mutes). The opening chapter of Tosefta Terumot cites the case of the cheresh children of R’ Yochanan ben Gudgeda, who were charged with the preparation of all of the taharot in Yerushalayim. Although it is unclear what may be extrapolated from this case due to the possibly exceptional status of these particular charashim, it remains evident that there are some circumstances in which a cheresh may be halakhically trusted with responsibility. Might there be shotim who could be similarly entrusted?

Another class of halakhic actions consists of those actions whose mechanistic performance by all three of the cheresh, shoteh, and katan is allowed under supervision. These include shechitah (kosher slaughter) and the sanctification and sprinkling of the ashes of the parah adumah (red heifer). This category of action requires only oversight, and it is unclear how much, if any, da’at the slaughterer needs. However, the fact that we trust those lacking in da’at to perform certain actions (if only under supervision) shows that these people do have some degree of responsibility and trustworthiness.

Classification of actions into the final category can be quite difficult. For example, how are we to determine what level of da’at certain actions require, as well as how much da’at we can attribute to someone in the three “disabled” categories? Additionally, should we exclude such a person from all halakhic categories in which they are not explicitly included, or include them in those from which they aren’t explicitly excluded?

For example, Tosefta Terumot cited by the Yerushalmi records a dispute between R’ Yehudah and the Chakhamim as to whether we can extrapolate from the case of preparing taharot to that of separating terumah. Rabbi Yehudah draws the analogy, invoking the aforementioned case of the cheresh children of R’ Yochanan ben Gudgeda, but the Chakhamim reject it. The key issue appears to be that separating terumah, as opposed to preparing taharot, involves not merely carrying out directions that are relevant to the halakhic status of an object, but imposing that status on the object. R’ Yehudah may hold that a cheresh is just like a pikei’ach (halakhically capable Jew), and therefore capable of establishing halakhic statuses. Alternatively, R’ Yehudah might require less da’at to designate terumah than do the Chakhamim. He makes the same argument regarding a katan, but not for a shoteh.

The Yerushalmi in Chagigah specifies re’iyah (pilgrimage) as an example of a mitzvah that requires a type of da’at that the cheresh, shoteh, and katan lack. The da’at necessary in this case may be exclusive not due to its degree, but rather its type. This mitzvah, associated with the Shalosh Regalim (Three Festivals), is intended to gather everyone in Israel to Yerushalayim. In other words, the mitzvah is meant to achieve a communal effect. Thus, perhaps a special da’at is needed to that end. Conversely, perhaps mere presence is sufficient in this case. (Note that this differs from the mitzvah of tefilah with a minyan (praying with a quorum), as that is an obligation to ensure that there is a communal event, rather than to ensure that everyone from the community is present at the event.)

This Yerushalmi also provides a definition of katan that is outgrown long before the usual age of bar mitzvah. This opens up the possibility that the categories of cheresh and shoteh may be similarly narrowed.

In addition to pondering the halakhic role of the shoteh in society, we must also consider who should be included in the label.

Tosefta Terumot records four identifying characteristics of a shoteh: going out alone at night, sleeping in graveyards, tearing one’s clothes, and losing or destroying all that one is given. The Tosefta does not specify whether these characteristics are meant to be interpreted descriptively or prescriptively, and is similarly vague about whether they are culturally dependent, or even intended as representative samples rather than as qualifying characteristics.

Yerushalmi Gittin, when discussing these characteristics in the context of halakhic divorce, prohibits those afflicted with the condition “kordaikus” (perhaps epilepsy) from giving a get (divorce contract). The Yerushalmi thus implies that our previous definition of shoteh is insufficient, since one who has this illness would be considered a shoteh, yet does not exhibit any of the shoteh’s aforementioned characteristics.

The Yerushalmi and the Bavli both discuss a dispute regarding whether all four characteristics are necessary for one to be a shoteh, or only one of them. The Bavli’s list, however, does not include the final item of the Yerushalmi’s, namely, losing or destroying what one is given. Nonetheless, the Bavli later qualifies its list to state that this characteristic is indeed sufficient on its own, if only according to one opinion, as does the Yerushalmi (though in muddier terms).

The Tosefta in Bava Kama obligates one who hurts a shoteh in all forms of damage other than “boshet” (embarrassment). The Tosefta explains that this is because shotim lack boshet. Because of the vagueness of the term “boshet” in this context, it is unclear whether it refers to the payment for embarrassing a shoteh or to the embarrassment itself. Either way, this is the first time we have seen this quality used to describe a shoteh. How are we to understand this trait? It is possible that the description here is of one who lacks the self-awareness to be embarrassed, evoking the shoteh’s lack of da’at. Alternatively, we might be describing one who is so mortified by his/her condition as a shoteh that he/she cannot be further humiliated. The ultimate humiliation may not even come from being a shoteh, but rather from being classified as one, and thereby being denied a halakhic persona.

On a related note, the Bavli on Shabbat 13b makes use of a curious idiom: “Ein shoteh nifga,” “a shoteh cannot be harmed.” It is unclear exactly what is meant by this phrase. For example, “harm” might refer to physical or emotional pain. There are also multiple ways to understand why the shoteh’s is unable to experience said harm. On the one hand, the pain of the shoteh might be slowly dulled over time because of its magnitude. Alternatively, the shoteh might simply be unaware of external pain, either because of the intense internal pain he/she experiences as a shoteh, or simply because the shoteh lacks emotional or social consciousness. Regardless, these possibilities can again all be treated as either descriptive or prescriptive. We now have a far larger and more flexible net with which to classify the elusive shoteh.

This breakdown does not account for differences in the mental capacities of various shotim, which may affect their halakhic capabilities. Additionally, it leaves open the important question of how a shoteh relates to obligation in mitzvot, particularly those mitzvot lo ta’aseh (negative precepts) that are generally seen as morally intuitive, such as murder.

After we complete our traversal of the Bavli sources, the next step in refining the halakhic framework of a shoteh is to investigate its presence in the works of halakhic adjudicators, both old and new. Through the lenses of these revered figures, we seek both to gain an appreciation for the complexity of issues involving shotim and to better understand their perception within the world of halakhah.

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Pinchas and the Complexity of Moral Relativism

This week’s alumni Dvar Torah is by Elie Lerea

The end of Parashat Balak leaves its audience in high suspense. As the scene stands at the end of Balak, Pinchas has zealously killed an “איש ישראל” (Zimri) and Midianite princess (Kozbi), thereby ending the epidemic plaguing Israel. This seems to conclude the Parasha in a place of peace and tranquility for the nation as a whole. But what will Pinchas’ fate be? Will he be treated as savior or murderer? How should the people evaluate his willingness to play the vigilante when Mosheh Rabbeinu, representative of G-d’s law, seemed paralyzed? Indeed, our discomfort is enhanced and validated by the decision to end Parashat Balak just before we find out G-d’s reaction to Pinchas’ actions. This decision leaves us wondering about the moral validity of Pinchas’ decision until next week’s reading (which is, of course, previewed at Shabbat Minchah, and on Monday and Thursday), and waiting for G-d’s response to mark him down one way or the other. Is Pinchas’ zealous decision to kill justified by its anticipated and actual success at preventing further death on the part of the people?

To properly analyze this moral question, we must first make explicit several background conditions. First, we are assuming that Zimri and Kozbi have acted wrongly and deserve punishment. Second, we are assuming that Pinchas acted with the intent of ending the epidemic. Only with these two conditional assumptions can the moral question of Pinchas’ ends justifying his means even get off the ground.

In other words: the killing of innocent people toward no worthwhile end cannot be morally justified. Utilitarians might argue, however, that the murder of innocent people toward an end of saving the lives of a greater number of people is morally justified. Others might claim that the killing of people committing a great sin in public can be justified, even with no further utilitarian end. Pinchas has both of these justifications, and there is thus all the more room to argue in favor of his actions. And yet, one cannot discount the traumatic experience of an immediate public murder, which seems to still play such an important role in the moral calculus at stake.

The opening verses of Parashat Pinchas seem to prove a clear answer to our moral quandary. Reacting to Pinchas’ actions, G-d tells Mosheh, “Pinchas, the son of Eleazar, the son of Aaron the priest, hath turned My wrath away from the children of Israel, in that he was very jealous for My sake among them, so that I consumed not the children of Israel in My jealousy. Wherefore say: Behold, I give unto him My covenant of peace. And it shall be unto him, and to his seed after him, the covenant of an everlasting priesthood; because he was jealous for his G-d, and made atonement for the children of Israel” (Numbers 25:11-13). To sum up: Pinchas is justified in his actions, and therefore receives the covenants of peace and priesthood.

The “מי השלוח,” also known as the Izhbitzer, cannot accept so simple an answer to such a morally complex situation. Instead, he reevaluates the circumstances of the case. In doing so, he makes a broad point about human sin while solving, in his own unique way, the misfit between G-d’s uncritical endorsement and Pinchas’ morally complex actions.

In reevaluating the circumstances of Zimri’s actions, the Izhbitzer writes:

׳׳מי שמרחק עצמו מן היצר הרע ושומר עצמו מן העבירה בכל כחו עד שאין ביכלתו לשמור עצמו יותר מזה, ואז, כשיתגבר יצרו עליו ועושה מעשה אז הוא בודאי רצון הש׳׳י, וכענין יהודא ותמר, ואיהי בת זוגו ממש, וזהו הענין היה גם כאן, כי זמרי היה באמת שומר עצמו מכל התאוות הרעות, ועתה עלתה בדעתו שהיא בת זוגו, מאחר שאין בכחו לסלק את עצמו מזה המעשה…׳׳

When someone distances themselves from their evil inclination and protects himself from sinning with all his strength, to the point that he has no ability to guard himself more than this, and then, if the inclination overpowers him to the point that he acts (sexually), it must certainly be the Will of the Blessed G-d, as in the matter of Yehuda and Tamar, and she truly is his actual preordained partner. So too here – Zimri did, in truth, protect himself from any evil lusts, but now he came to think that she (Kozbi) was his preordained partner, since he was unable to remove himself from engaging in the act…

For the Izhbitzer, Zimri genuinely and reasonably believed himself to be acting in accordance with G-d’s will. Meanwhile, regarding Pinchas, the Izhbitzer wrties:

׳׳ופנחס אמר להיפך שעדיין יש בכחו לסלק עצמו מזה… כי גם על פנחס היה מקום לבעה׳׳ד לחלוק שמצוי בו מדה הנראה לעיניים שהוא כעס כמו שבאמת טענו עליו זאת, והיה הדין בזה שודא דדיינא…׳׳

but Pinchas said to the contrary that he (Zimri) had the strength to remove himself from this act… and also regarding Pinchas a litigant might claim that there was found in him a characteristic that appeared to the eye like anger, as in fact the people claimed against him. Therefore, the judgement between them comes down to a judge’s discretionary evaluation

The Chassidic master thus undoes the text’s seeming moral clarity and turns this case into one of ambiguity and chance. Zimri is no longer an obvious sinner – he genuinely believed that Kozbi was his Divinely ordained partner. Moreover, Pinchas was not necessarily acting out of a clear moral goal, but he may have been simply channeling his own anger at what he perceived to be a problematic act. As such, he may be imposing his own sense of the possible on Zimri.

Thinking about the Pinchas story as one of relative morality allows for an exploration of what it might mean when two acts that are fundamentally justified on their own terms come into conflict with each other. This relative tension, the Izhbitzer claims, is not one that is easily solved by any sort of rational, moral argument. Instead, G-d leaves the decision up to a שודא דדיינא. This Halachic concept, roughly translated as “the judge’s evaluation,” comes into play when a monetary legal case finds itself in a place of little to no deciding evidence one way or the other. The Rashbam contends that in such a case, it is up to the judge to trust their somewhat non-rational intuition to determine the legal outcome. With this backdrop applied to the story of Pinchas, the resultant image is no longer one of exclusive moral high ground on the part of Pinchas, but rather one that is filled with ethical tension with no rational justification one way or the other.

Whether or not this tension can actually be felt from the text itself, the Izhbitzer is no doubt playing out an anxiety that is felt by readers. Through his reframing, he is able to tell a story that highlights the complexity of moral conflict and makes the resonant claim that there might not ever be a real way to come to a definitive way of deciding between multiple conflicting values. Instead, the Izhbitzer articulates moral decision making through the lens of שודא דדיינא and leaves room for the possibility of an ethical picture that constantly carries opposing values in the same bag, never discounting the other’s existence and always competing and being rebalanced on a case by case basis.

שבת שלום.

Elie Lerea (SBM 2016) just graduated Cooper Union and is heading to Maaleh Gilboa for the coming year for intensive kollel study.

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SBM 2017 Shiur Guide

Follow along with SBM 2017, on the topic of “Mental Disabilities in Jewish Law”, here.

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