Judaism and Disability 2 of 4: Ancient Words, Modern Sensibilities: Disability and the Talmud

From roughly spring of 2001 until roughly the spring of 2002, I researched and wrote as part of my baccalaureate degree at Yale University a paper entitled Judaism and Disability. It was quintessentially a work of undergraduate scholarship, building heavily on the work of Judith Abrams, the Journal of Halacha and Contemporary Society, and what few other scholarly articles were available on the topic at the time. In the years that followed, I have spoken numerous times on the subject, usually to synagogue audiences, tailored to give them an ethical and halachic framework on which to make disability related decisions as Jews and Jewish organizations. The more times that I have given the talk, the more I have come to realize that, while scholarly treatments of this subject exist, there is a dearth of any type of written material explaining the sources and the perspectives and the practical points of view to the interested Jewish layman. These four posts are the key points in that work, largely unmodified from my undergraduate submission: The rabbis in their texts, the Mishnah, the Tosefta, and both Talmuds, the Bavli and the Yerushalmi, gave shape to Judaism, framing this discussion and many others. Before proceeding, I again feel the need to give credit where credit is due. I have neither the knowledge of Rabbinic texts, nor the familiarity with them, to have located the forthcoming citations on my own. While the blog format required the removal of footnotes and bibliography, I am in debt almost entirely to secondary authors. I am happy to provide footnoted text with bibliography upon request.

Except for the broad umbrella of overall themes found within the Mishnah, I have failed to come up with a true ordering scheme for the passages cited. As such, save for a little bit of thematic breakdown, this section follows roughly the order of the Mishnah. Talmud and Tosefta will be ordered with the Mishnah in such way as they best explain the Mishnah, as some would argue was their original intent. After that will come independent bits of Talmud.

RIGHTS AND RESPONSIBILITIES

The core of any legal system are the rights and responsibilities of those within the system, and the Jewish system is no exception. Since this is the core concern, the Talmudic discussions impacting the rights and responsibilities of Jews with disabilities give us a clear insight as to an overall Jewish approach to disability. Numerous mishnayot and Talmudic passages provide insight on this point. Let us consider the following passage from Mishnah tractate Terumot. There are five that may not give the heave offering, and if they do so their heave offering is not valid: a deaf mute, an imbecile, a minor, he that gives heave offering from what is not his own; and a Gentile who gives heave offering from what belongs to an Israelite -- even if it was with his consent his heave offering is not valid. He that is not dumb but [only] deaf may not give heave offering, but if he does so his heave offering is valid. The cheresh of which the sages have spoken is always one that is both deaf and dumb. If a minor has not yet produced two hairs, Rabbi Judah says: his heave offering is valid. Rabbi Jose says: if [he gave heave offering] before he reached an age when his vows are valid, his heave offering is not valid. (Terumot 1:1-3)

This raises an interesting question. Are the deaf mute and the imbecile unable to make valid vows? If so, why? Is it an implication of their then believed lack of cognition, or is it something else? Some light is shed by the second sentence. A verbal deaf man, as opposed to one who is mute, is not obligated, but should he make an offering, it is valid. It is possible that this distinction, which in the Mishnaic times was the distinction pre and post lingual hearing loss, reflects that culture’s inability to teach the deaf. Simply put, it was not fair to obligate those who could not be taught, yet, if one demonstrated knowledge, it was not invalid.

The Tosefta contradicts the logic of the Mishnah that one who is both deaf and mute cannot give valid heave offering. In Tosefta Terumot 1:1 we read the following. Rabbi Judah says, “a deaf mute who separated heave offering -- that which he has separated is valid heave offering” said Rabbi Judah, M’SH B: the sons of Rabbi Yohanan ben Gudgada were deaf mutes, and in Jerusalem all of the foods requiring preparation in purity were prepared under their supervision.” They said to him, “is that proof [that a deaf mute may separate heave offerings]? For foods requiring preparation in purity do not require [preparation with] intention and [therefore] may be prepared under the supervision of a deaf mute, imbecile, or minor. [But] heave offering and tithes require [separation with] intention [and therefore may not be separated by such individuals).” Rabbi Isaac says in the name of Rabbi Eleazar, “that which has been separated as heave offering by a deaf mute does not enter the status of unconsecrated food [even though it is not valid heave offering] because it is a matter of doubt whether or not he has understanding. A first read at this passage might bring a modern disability rights activist into a state of outrage. I encourage the reader to abandon for a moment the modern world view where a quality and inclusion have acquired normative significance, and our ability to communicate with and engage the cognition of people whose disabilities render them nonverbal has reached unprecedented heights. Consider instead that within the understandings of the culture from which these rulings come, this is in fact a very inclusion centered decision. Before standardized systems of sign language, before Helen Keller, and before modern science, rabbis had no way of knowing whether one who could not communicate could learn or think. They did not know whether the root cause of the inability to speak was physical or cognitive, or even that such categories existed. This middle road was as fair as they could be, given that issues of intent were central to their worldview. Simply put, Mitzvah performed without the requisite intent is per se invalid.

It is evident in the later description in 1:2 and 1:3, which takes as broad as possible a view of who is a deaf mute without intent, that the rabbis did not wish to exclude anyone unnecessarily. This idea finds ultimate clarity in the Yerushalmi. In Terumot 1:1 II A., it is said: “Now the deed [of a deaf mute, imbecile, or minor whose separates heave offering] should indicate that he gave [proper] thought [to separating it], so that the separation is valid, [contrary to Mishnah Terumot 1:1]”. This enjoys great facial similarity to the logic in the Bavli. In fact the same idea is operating. The beauty of the Yerushalmi is that it then proceeds to give a whole section on what proves intent, and therefore cognition, thus making a widely applicable principle. As the Yerushalmi applies intent and cognition to activities such as judging, the author Judith Abrams points out their importance in questions of community leadership. Not just intent, but decorum was a big concern for the rabbis. The common sensibilities, i.e. what will offend the populace become the litmus test on whether those such as the blind or ill-dressed can lead, lest they disrupt or distract the public intent. Without intent, and cognition, ritual becomes meaningless. Abrams mentions that this idea, which comes to its ultimate fruition in Ben Sirah and other Judaic literature, makes lack of cognition the ultimate form of valuelessness. This becomes a strong strike against all disability because of the equation of deformed body and deformed mind in this literature.

Moving on to tractate Megillah, we are confronted with another limiting passage. In Megillah 2: 4, we read, “All are eligible to read the scroll excepting one that is deaf or an imbecile or a minor.” This immediately raises the question of why the deaf person? Oftentimes, the cheresh is excluded because of a perceived intellectual deficiency. This passage separately mentions the imbecile, however. The Yerushalmi takes up this question in 2:5. In section 1:1, we read, “Said R. Mattenah, this represents the view of R. Yose [in excluding the deaf mute,] in the theory that the reader must hear what he is saying.” R. Hisda disagrees, feeling that the opinion of R. Yose applied specifically to the Shema, which begins with the statement, “Hear O Israel”. Hisda’s opinion is that since the deaf person is so often included with minors and imbeciles that there was a mistake in the recitation of the passage and deaf was not meant to be there. While one cannot discount the possibility, the fact that this combination was so common that it was an understandable possibility that it was said by mistake itself tells us something very interesting about the rabbinic conception of disability of deafness. Clearly, it immediately associated one with the margins of society.

Further of interest is the fact that the question of why occurs to the rabbis of old, and that at least one is willing to brand it a mistake. This means that thousands of years ago, the notion of excluding a deaf person simply because they were deaf was regarded as bizarre or inappropriate by the rabbis. From here, as from sources discussed later, one can infer that the default standard was the greatest inclusion possible.

Moving on through the sources in the Mishnah, tractate Megillah, chapter 4:6-7 says the following: He that is blind may recite the Shema with its benedictions and interpret. Rabbi Judah says: he that has never seen the light may not recite the Shema with its benedictions. This may relate to the benediction involving light. If a priest has blemishes in his hands, he may not raise his hands [in the Benediction of the Priests]. Rabbi Judah says: moreover one whose hands are died with woad or madder he may not lift his hands because the people would gaze on him. Immediately these passages raise questions, but the best answers are perhaps in the Talmud, and indeed, the Talmud on the subject is rich. This passage is discussed in Bavli 24b. The issue of most interest to the rabbis is why a blind man should be allowed to repeat the blessings in his heart, including praising the creator of light. First, the analogy is drawn to those Rabbinic concepts, such as the chariot of Ezekiel, which are impossible to comprehend except by insight. Furthermore, they find that the blind man can gain benefit even from those things that cannot be seen by them. It is written: Rabbi Jose said: I was long perplexed by this verse, ‘and you shall grope at noonday as the blind gropes in darkness’. Now what difference [I asked] does it make to blind man whether it is dark or light? [Nor did I find the answer] until the following incident occurred. I was once walking on a pitch black night when I saw a blind man walking in the road with a torch in his hand. I said to him, my son, why do you carry this torch? He replied: as long as I have this torch in my hand, people see me and save me from the holes and thorns and briars. (Megillah 24b) The idea here is that there is some benefit to the blind man saying the prayer for light. The question that this explanation raises is whether a blind man benefits from his own action, or that like the torch, his words allow those who hear him to grow and learn and thus to better help him. One implies inherent value in the actions of the blind man. The other makes the blind man the torch bearer, a vehicle by which others learn things that they can then use to help him.

In explaining the discolored or deformed hands, the rabbis give the following interesting answer. They include in the group anyone who would distract those who were praying, including foreign accents. They added the disclaimer that for any of these limitations, if the townspeople were accustomed and would therefore not be distracted, then the prohibition was lifted. This seems to return us to the earlier question of distracting another’s intent. Clearly, a person with whom you are familiar, no matter how visually unusual, is a person who will not distract you.

The next important passage is in Hagigah 1:1. The Mishnah says the following. All are subject to the command to appear before the Lord excepting a deaf-mute, an imbecile, a child, one of doubtful sex, one of double sex, women, slaves that have not been freed, a man that is lame or blind or sick or aged, and one who cannot go up [to Jerusalem] on his feet. Immediately, we see two apparent sets of characters, the marginalized or marginal in identity, and those who do not have the capacity to fulfill the command. Of those who cannot fulfill the command, the exemption is not only understandable, but bespeaks a gentleness and consideration that seems to inform many such commands. For the marginals, we must look at each one and wonder why. Assuming that children are actually excluded for lack of physical capacity, (the later part of the same Mishnah establishes that a child is one too young to ride on his father’s shoulders) we can remove cognition as a qualifier, as presumably a child too young to understand could still fulfill such a command. Yet, if we presume for a moment that a child will one day be able to accept responsibility and fulfill the command, we separate them from the “imbecile” and the slave who has not been freed. They are in a different set for consideration, as they cannot make their own choices, and may never be able to.

Let’s explore for a moment the troubling concept that our translations referred to as an “imbecile”, or shoteh. To understand the rabbinic concept of an imbecile, we must try to avoid all of the modern stigma of the word and focus on the notion of one who truly lacks cognition and understanding. On this point, the remarks of Judith Abrams again are enlightening as to what we see as the developing Rabbinic logic. Noting that children are often grouped with the disabled, she correlates them with the factor of da’at, which a simple translation would render knowledge or cognition. For Abrams, however, it connotes intention, consent, opinion, knowledge, and maturity. From this springs the concept of the shoteh. In Abrams opinion, the shoteh can be anyone without da’at. This need not result from and is not a foregone conclusion to be a result of cognitive disability. A person without a disability could lack da’at, and a person with an intellectual disability could still have da’at.

According to her, da’at is necessary to be a part of the Rabbis’ system. Their system is dependent upon learning, hearing, thinking, and then, only with proper intent, doing. The groups we have, shoteh, katan, and cheresh, are presumably lacking the ability to engage in that process. At the very least, they have yet to develop it or their ability it is in doubt. This is why they are marginalized and why so much effort is put into their categorization. The best that can be said of these groups is that sometimes, in their innocence, they serve as vessels for the will of God. This system is given some proof in that for most things, visual and physical disabilities do not make one liminal, only disabilities of cognition and sexual ambiguity.

If we accept that a woman was free of such obligations because of gender issues beyond the scope of this post, we can understand that the androgynous person and the hermaphrodite are excluded because their gender is uncertain. Explanation is provided by the Bavli. In Bavli tractate Sanhedrin folio 66a, we find the following explanation, at least of our suppositions about those of indistinct gender.

Our rabbis taught: [“For any man that curseth his father or his mother shall surely be put to death: his father and his mother he has cursed; his blood shall be upon him”. Now, the Scripture could have said] A man [ish]; what is taught by any man [ish ish]? -- the inclusion of a daughter, one of indeterminate sex, and a hermaphrodite [as being subject to the law]. This exception helps prove the rule that gender uncertainty was one of importance for both legal obligation and legal penalty. Even as women were held to different standards because they were not men, so were people of indeterminate sex usually excluded. Yerushalmi Hagigah 1:1 VI-VIII has an in-depth discussion of this which absolutely and clearly indicates that the question was one of the ability to determine gender. This we know because it is said that if the gender becomes determined, and it is male, than he is obligated. We are still left with the question from this passage of a blind man or a deaf mute, the iver and cheresh of the Bible. The question of the blind man is expanded upon in the Babylonian Talmud, Hagigah 2a. In commenting on the word “all”, the rabbis say the following: what does “all” come to include? -- it comes to include a man who is blind in one eye; and it is contrary to the opinion of the following Tanna.... a man who is blind in one eye is exempt from appearing [at the Temple] as it is said, “he will see; he will be seen”. This logic of the rejected Tanna does explain why a fully blind man is not included. Assuming that his mistake was assuming that having only one eye precluded seeing and being seen, such would nonetheless be impossible for a blind man. In Tosefta Hagigah 1:1 the logic of seeing and being seen excluding the blind man is repeated, leading one to believe that this is from whence the Tanna is cited. The Tosefta calls this the opinion of Rabbi Judah, while the opposing opinion is included as the opinion of Rabbi. From a Rabbinic perspective, the deaf mute can be fit under a cognition rubric. Bavli Hagigah 2b supports the logic of cognition saying directly that the imbecile, the minor, and the cheresh are excluded for lack of understanding. Later, in 3a, there is further discussion of the nature of cognition, and that of obligation, of people with disabilities. First, there is a story of a Rabbi who taught those who could hear but not speak. When God granted them the ability to speak, it was found that they had learned, proving their intelligence. Still later in 3a, one who is deaf in one ear is exempted from an obligatory appearance because of the admonition, “so they may hear”. The editor of the Soncino Talmud in English feels that this is to remove the stigma of an inability to learn from the commandment, thus bringing it into line with the prior discussion.

People of liminal status are not without protection. In Mishnah tractate Baba Kamma 8: 4 we read the following admonition. It is an ill thing to knock against a deaf mute, an imbecile, or a minor: he that wounds them is culpable, but if they wound others they are not culpable. It is an ill thing to knock against a bondman or a woman: he that wounds them is culpable but if they wound others they are not culpable; yet they may need to make restitution afterwards -- if the woman was divorced or the bondman freed they are liable to make restitution. This passage teaches that one who is not responsible for their own actions, not in control of their own actions, or is under the guidance of someone else, cannot be charged restitution. The fact that upon becoming responsible for themselves, i.e. a freed bondman or divorced woman, these same individuals become responsible for their actions, proves this point very clearly. The deaf mute, the imbecile, and the minor represent a class of people believed unable to take responsibility for their own actions. There exemption from liability represents two principles in Mishnaic law, one laudable, the other questionable. First, those who cannot control their own actions are not culpable for the consequences. With this, however is pared the unfortunate idea that deafness implies inability to control one’s actions.

The Tosefta seems more confused on the same issue. In Baba Kamma 9:13 we have the following exchange: (I have removed the translator’s outline formatting to avoid confusion) He who inflicts injury on a deaf mute, idiot, or minor, is liable in four counts, but exempt on the count of indignity, because they are not subject to indignity. Rabbi says: “I maintain concerning the deaf mute that he most certainly is subject to indignity. As to a minor, he is most certainly not subject to indignity. As to an idiot, sometimes he is subject to indignity, and sometimes he is not subject to indignity.” As to a blind man, Rabbi Judah says, “he is not subject to compensation on the count of indignity.” And sages say, “he is subject to compensation on the count of indignity.” Clearly, there is some disagreement here. As this is the Tosefta not the a law book, it is difficult to say what became law. The unattributed statement voices a low opinion of the intelligence of described categories of people. Yet, the rabbis disagreed on this point. Rabbi and the sages understand that there is a certain dignity accorded to the blind and the deaf. Rabbi Judah withholds that dignity from the blind, and, since in the ancients’ hierarchy the blind were granted higher dignity than the deaf mutes, we can assume it was withheld from the deaf as well. Again, since neither offers proof text or rationale, it’s impossible to see whether this evidences a coherent view on disabilities, or whether this is simply a disagreement based on opinions of people with disabilities. Though the Tosefta does not shape halachah, this nonetheless shaped Rabbinic opinion on both sides of the debate.

In Yerushalmi tractate Peah, the idea is again brought up that provides special protection to those with disabilities. In fact, as a corollary, the idea is brought up that generosity to people with disabilities is repaid by generosity from God and is in fact tantamount to honoring God. Also, failure to assist brings Divine punishment.

Complimenting the discussion of responsibilities, and what rights can from there be gleaned, there is also very direct discussions of the rights of individuals with disabilities. In Mishnah Sanhedrin 8: 4 when speaking of the putting to death of a rebellious child, the following is said. If either of them was maimed in the hand, or lame or dumb or blind or deaf, he cannot be condemned as a stubborn and rebellious son, for it is written, “then shall has mother and his father lay hold on him” -- so they were not maimed in the hand; “and bring him out” -- so they were not lame; “and they shall say “-- so they were not dumb; this is our son -- so they were not blind; “he will not obey our voice” -- so they were not deaf.

The most common analyses of this passage within the tradition are laudatory. Most commonly, this passage is quoted to indicate the extreme lengths to which the rabbis would go to avoid enforcement of an admittedly grisly biblical idea. Lost, often within that analysis is an acknowledgment of the willingness to treat people with disabilities differently. This line of thought within the tradition goes on to create requirements that no human set of parents could meet before they could punish the rebellious son. One must ask, therefore, why it was necessary to single out people with disabilities as of the first to be excluded from this parental right or obligation, and what unfortunate lessons this provides to someone who, when wrestling with a question of halachah, looks to the rabbinic guidance in one situation to learn that the act in another.

Unfortunately, the themes that one can glean from this ruling create terrible precedent. The questions and issues are as follows. First and foremost, there is no mention of accommodation; a rebellious son appears to become unpunishable if his parents have a disability. Further troubling is the notion, buried within the text, that a blind person would not know his or her own son. In a clear example of the slippery slope concern raised above, this concept is expanded upon in the Yerushalmi Sanhedrin 8: 5 and extended to the qualifications of judges to judge, since similar language involving actions is utilized. This creates a danger that every biblical text using this language to define a physical task, a literal interpretation will prevail, and hence disqualify people with disabilities from all manner of participation in society.

The limitation of rights of Jews with disabilities finds its most profound expression in temple service. In Bekhoroth chapter 7, there is a discussion of who among the priests can serve in the Temple. There is an incredible list of disqualifying blemishes, some to do with head shape, others with shape, size, or functionality of various other body parts. The list only seems to have one guiding principle, that of aesthetic functional perfection. This seems to build on Abrams’ earlier concept, that the priest must be a perfect receptacle. Clearly, the rabbis’ view of perfection was particularly physical. The word unsightly is used at least once as justification. Towards the end of chapter 7, we find a discussion of true physical ability, but this is clearly not first and foremost in the analysis.

VALUE JUDGMENTS AND LESSONS: THE WHY OF DISABILITIES

In the Jewish world, it is said that “all is in the hands of heaven save for the fear of heaven.” The most important meaning to take from this aphorism is of course that our attitude is all that is within our control. More important for our purposes here, however, is the understanding that all of life unfolds according to the divine will. If this is the case, then disabilities are not accidental, but for good or ill, are a part of the divine plan. We saw this discussed a little bit above, but the concept of disabilities being given by God returns with stark clarity in Bavli Niddah 31a. The passage is as follows: and the Holy One, Blessed Be He, gives him the spirit and the breath, beauty of features, eyesight, the power of hearing and the ability to speak and to walk, understanding and discernment.

Harder perhaps that acknowledging the easy fact of the divine nature of disability is trying to figure out why disabilities are part of the divine plan, a topic on which rabbinic thought appears conflicted. First, Nedarim 20a, lists defects caused by various forms of sexual misconduct. Examples include lameness for physical misconduct in sexuality, muteness for oral misconduct, and blindness for visual misconduct. This tends to place to blame squarely on the parents, as well as strongly regulating sexuality. Contrasting with this, 20b discusses the sexual conduct of Rabbi Elazer ben Hyrkanos, noting certain irregularities enhance the beauty of the children. In the end, the issue is not resolved, because the halachah says simply, “a man may do whatever he pleases with his wife [at intercourse].”

The idea that the punishment of disability fits some sort of crime is a theme found in chapters 3 and 4 of tractate Sotah of the Tosefta. Then, in Tosefta Berachot 6:3, this idea is revisited with a twist. The Tosefta explains that upon seeing various disabilities and deformities, you are to praise God for his manifold creations. In essence, this makes disability an exercise in Divine creativity. Then, the Tosefta goes on to instruct that for other conditions, one should say, “Blessed is the true judge”. This is the traditional Jewish response to tragedy, or death. It indicates that God has a reason for the bad things that befall humanity. This put the level of complexity on the question and might be interpreted to show that it could be either blessing or curse.

Analysis

While there is certainly more to be learned from the above sources than could fit in numerous papers the size, and it may be most valuable to my readers to lay out the sources and allow them to draw their own conclusions, I would be remiss in not exploring for a moment to central themes that I observe from the above sources. I glean three major themes from the above. 1. Cognition and the importance thereof is central to the halachic treatment of questions of disability; 2. Disability, like everything else, is an expression of the will of God; and 3. God and humanity must partner in the care, support, and the inclusion of people with disabilities.

COGNITION

It is easy, and erroneous to view the rabbis focused on cognition as a prejudice to disregard of individuals with intellectual disabilities. To believe this is to miss the point last intent, in Hebrew kavanah is a critical and foundational piece of the rabbis understanding of the world. It is the intent that gives the action value. In many ancient cultures, ritual, and the exact formulas thereof, had concrete effect on both dieties and the world. These effects were both compulsory and sustaining. Judaism is not a religion of magic and ritual and prayer neither compel nor sustain the Jewish God. Rather, prayer, and a sacrificial rituals that it replaces serve to provide us with a concrete communicative connection to the divine. Without intent, there is nothing to communicate. It would be very much like saying words without knowing what they meant, a phenomenon of modern religion that would shock the ancients. The Hasidim would later theorize that intent could fully overshadow formula. This idea is neither new nor novel. Originally, the form of the prayer service was laid out by theme and the words provided belonged to the individual. Such a system would have been meaningless without intent and cognition.

To emphasize that this is a firmly held value and not an exclusionary prejudice, we should examine the lengths to which the rabbis went to make sure that no one was excluded. Great lengths to determine cognition, as well as great lengths to eliminate the stigma of liminal status were commonplace. Remember, a demonstration of cognition consistently overcame any presumption of exclusion.

DISABILITY AS THE WILL OF GOD

I will not belittle the beliefs of many Jews today as many Jews throughout the ages that every detail of the universe is ordered according to the divine will. Rather, I will remind the reader that the texts are ambivalent as to whether having a disability as we define it is even negative, much less punishment. In Judaism, in response to the experiencing tragedy or death, the legislative response was baruch dayan ha-emet, blessed is the true judge. Implicit in this response is the idea that the why of the occurrences of our lives is often beyond our understanding. We accept simply that the happening is God’s will, for good or for ill. To have this as the starting understanding of the origin of disability has the potential to be far less limiting that the prospective of those who would simply lament their ill fortune.

GOD AND HUMANITY SHARE RESPONSIBILITY FOR CARE AND SUPPORT

The idea that both God and humanity must partner to promote the well-being of individuals with disabilities, and that this is a holy partnership, dates, as we saw above, all the way back to the book of Leviticus. Consideration and respect for one’s fellow human being is a central idea to Judaism, and is extended whole cloth to people with disabilities.

It is frankly amazing to think that this can be gleaned from Jewish ancient sources when much of premodern and modern society condemned people with disabilities to the streets and the institutions. Judaism understood back in biblical times that caring for the neediest among us was a holy obligation.

It is this very consideration that will inform the discussion of halachah that we will have in the next section. Judaism is at its forefront a legal system, and so the law must be upheld. We see this in the exclusions in the Talmud. Equally strong, however, is the commitment to temper that law with compassion and find ways to minimize any negative impact of these rules.