The Status of People with Disabilities in the Jewish Tradition
From Static Definitions to Dynamic Definitions
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The status of people with disabilities in Israel is tremendously changing, as it is throughout the Western world. This collection of articles seeks to examine the process that is taking place among the traditional Jewish community, drawing from the values and ideas presented by the Jewish legal system.
The status of people with intellectual disabilities in Israel is undergoing tremendous change, just like in much of the Western world. Recognizing alternative intelligences, various measures to create interpersonal communication and alternative expressions have helped the community understand that those who were once considered lacking in cognitive abilities and thereby to be removed from normative society are now part of a growing trend toward integrating people with special needs into mainstream society. Everyone is working together to make adjustments and accommodations for this community.
And what should we do according to Jewish law?
The present volume studies the classic Jewish texts that address the status of persons with intellectual disabilities and their integration into the community.
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Introduction: The Need for a New Conceptualization
The present volume, which studies the classic Jewish texts that address the status of persons with intellectual disabilities and their integration into the community, faces a number of challenges. The first challenge is simply the presentation of the changes that have taken place in society, which now aspires (at least overtly) to maximum integration of persons with intellectual disabilities in all spheres of life. This trend runs counter to the practice of thousands of years, when the segregation and isolation of such people was almost taken for granted. This challenge is relatively simple, because it involves an organic process of the sort that confronts tradition on all fronts.
A more difficult test faced by the contributors is the conceptualization of persons with intellectual disabilities. Modifying how such persons are defined poses a challenge for every domain–the professional, the social, and the legal.
The Ministry of Social Affairs publishes an annual survey of the social services in Israel. Chapter 8 of the 2009 survey, which deals with persons with disabilities ,offers this historical picture of the social integration of the intellectually disabled (formerly known as the “mentally retarded”).
Society’s attitude towards the intellectually disabled used to be based on the medical model. Their disability was considered to be a medical problem and, accordingly, so were the solutions proposed. Treatment focused on therapy to help the victims develop and adjust to the environment. The prevalent medical approach maintained that the gap in learning and abilities stemmed from an organic injury to the brain. Consequently, it was viewed as an incurable disease. We can readily understand why the institutions that were created at the end of the nineteenth century followed the model of large hospitals. […] The medical approach called for placing the persons afflicted in institutions and providing them with physical medical treatment. In addition, those who were different and had disabilities were isolated from society in order to protect it from them.
The nineteenth century saw the start of a transition to a therapeutic approach; their placement in closed institutions was no longer seen as a desire to guard society against them, but as a way to protect them and permit appropriate treatment.
The scientific diagnosis of persons with intellectual disabilities views their mental limitation as a static condition and determines their status accordingly. Persons are diagnosed as suffering an intellectual disability if their intellectual age is significantly lower than their chronological age and their score on intelligence tests is more than two standard deviations beneath than the mean; that is, an IQ below 70. Every additional standard deviation below 70 is correlated with a more severe disability. The definitions employed by the mental health system classifieds the population by their test scores.
Unlike the social attitude described here, Jewish communities over the generations always integrated special people into their normal structures. There were no therapeutic institutions, and certainly no widespread notion that there could be a dynamic change in a person’s condition; rather, there was always an instinctive capacity for inclusion.
The study of halakhah involves the scrutiny of texts that link the wisdom of the generations with the world of the present. Any study of the attitude towards persons with intellectual disabilities, as found in the classic Jewish texts, must begin with a survey of the terminology applied to such persons by the rabbis over the generations.
The first stage of this conceptualization requires distinguishing persons with intellectual disabilities from those with mental disorders (halakhic texts refer to the latter under the general rubric shoteh, fem. shotah, pl. shotim). The muddling of shotim with persons who suffer from intellectual disabilities does an injustice to both reference groups and interferes with their appropriate treatment in all sectors of life.
Because the present volume deals with the attitude towards persons with intellectual disabilities, I will not consider the challenges posed by the conceptualization of the shoteh. Until very recently, all human beings with intellectual disabilities were lumped together under the catchall term “retarded.” The halakhic literature displays two main attitudes towards such persons. Many decisors made no distinction between an intellectually disabled person and the shoteh (whose dictionary definition is “idiot,” “imbecile,” or “madman”)–a conceptual confusion of behavioral disorders with intellectual disabilities. The classic source that defines the intellectually disabled person as a shoteh is in Maimonides’ “Laws of Witnesses”:
Those who are feeble-minded (peta’ím, pl. of peti) in the extreme, who do not understand that matters are mutually contradictory and who are incapable of comprehending things as most people do, as well as those who are terrified, over-excited, and deranged, are considered to be among the shotim. This matter depends on the judge’s discretion, inasmuch as it is impossible to describe mental states in a text.
The later halakhic authorities (from the sixteenth century onward–the ahronim) understand the word peti (“feeble-minded”; the dictionary definition is “fool,” “simpleton”) here as parallel to “intellectually challenged” (see further below). That is, Maimonides’ definition of the feeble-minded assigns them to the more general category of the shoteh. It follows that halakhah classifies a person with intellectual disabilities as a shoteh, and that just as the shoteh is not bound by the precepts, neither is the he.
Another possible implication of the definition of an intellectually disabled person as a shoteh emerges in the rulings of Rabbi Moses Sofer, known as the Hatam Sofer (Hungary, 1762–1839).5 He assigns the feeble-minded to the talmudic class of the heresh or deaf person. The feeble-minded, like the deaf, have no role to play in society, at least so far as halakhah is concerned. However, because deaf persons can have some social relations among themselves (and with the hearing), they are distinguished in some respects from the shoteh. Thus the latter cannot marry, whereas the talmudic sages permitted the deaf to contract marriages valid under rabbinic (but not Torah) law ; and so too the intellectually disabled, according to Rabbi Sofer. A similar approach to the intellectual disabled defines them as shotim, but only for some purposes and not in every respect. They are still set apart from society, but some of their acts have legal validity, as expounded in the halakhic discussion of a person who is a shoteh for one matter only. This approach parallels the historical stage with regard to the status of the intellectually disabled in general society, which dates back several decades: they are not full-fledged members of society, but can develop and participate in certain respects.
Although many believe that Maimonides defined the intellectually disabled person as a shoteh, some have read him as referring only to the specific topic of that section of his code–the admissibility of his testimony in court; in other matters, though, the status of such persons is not that of a shoteh. That is, if an intellectually disabled person understands the implications of what he is doing, even on a lower level than “most people,” his actions are valid. Here I will attempt to animate and reinforce this reading through a close study of two concepts that apply only to the intellectually disabled person and not to the shoteh: the peti and the “knowledge of infants.”
The book of Proverbs (14:15) presents the peti as a “simple person” who is contrasted with the arum or “clever man”: “A simple person believes anything; a clever man ponders his course.”
The peti is someone who is easily enticed (Heb. patah) to do something, because he lacks the capacity for critical judgment, and is the opposite of the clever or prudent person. The midrash (Exodus Rabbah 3) glosses peti as meaning a young boy or, alternatively, one who is easily enticed. We can view this as referring to successive stages in a person’s ability to manipulate his environment. Every parent is familiar with the stage when children begin to understand the consequences of their actions (crying, anger, best behavior, and so on) and exploit this knowledge as a powerful weapon to obtain their desires. The peti lacks this ability. He cannot be smart about what he does. The process of growth and development also includes an increased capacity to distinguish mutually contradictory items. The peti, who believes everything, may encounter contradictions without being aware of them. We have seen Maimonides’ description: “Those who are extremely feeble-minded […] do not understand that matters are mutually contradictory and […] are incapable of comprehending a concept as most people do.”
In his commentary on the definitive code of Jewish law, the Shulhan Arukh (Hoshen mishpat 35:10–an almost verbatim citation of the passage from Maimonides we quoted above), Rabbi Joshua Falk (Poland, ca. 1555–1614) explains the matter as follows:
The distinction between the peti and the shoteh is that the mind of the shoteh is disturbed and totally confused on some matter. But this is not the case with the peti, who is not totally confused about anything. On the one hand he is worse off than the shoteh, inasmuch as in other matters the shoteh is just as intelligent as other human beings. But the peti lacks a full intellect and does not understand anything as other people do. This is why it concludes with the statement that [the peti] is deemed to be a shoteh, meaning that he is ineligible to appear in court, but [otherwise] the designation shoteh does not apply to him.
Rabbi Falk’s comment, based on a close reading of Maimonides and the Shulhan Arukh, is crucial for my argument. A person with an intellectual disability is not a shoteh. His testimony is inadmissible in court because his capacity for critical thought is deficient, but “the designation shoteh does not apply to him” in other matters. The authors of rabbinic responsa from all periods adapted the definition to fit the question addressed to them. Here, for example, is a responsum by Rabbi Joseph di Trani, known as the Maharit (Safed, Constantinople, 1568–1639):
A case was submitted to us about a man who came to perform halitzah [the ceremony that releases a widow from the obligation of levirate marriage]. He cannot speak and is not very bright, but he does understands practical matters like buying in the marketplace, he can follow instructions and respond appropriately, and shows none of the signs of the shoteh mentioned in Tractate Hagigah. […]
And what Maimonides wrote in Chapter 9 of the Laws of Witnesses, that “those who are feeble-minded in the extreme, […] do not understand that matters are mutually contradictory and who are incapable of comprehending things as most people do, […] are considered to be among the shotim.” […] Now even though this man may not understand things the way most people do, he nevertheless recognizes that certain things contradict each other and can respond appropriately; and although he is somewhat unreasonable about what he wants, like “a deaf viper that stops its ears” [so as not to hear the voice of the snakecharmer– Ps. 58:5; evidently with a play on the words peten ‘viper’ and peti], and can be a stubborn fool–nevertheless he is not on this accounted among the feeble-minded mentioned by Maimonides. It seems furthermore that he [Maimonides] stated this only with regard to bearing witness, where one must testify about what has already happened, and we may be wary that what he imagined to be the case then really was not, and he replaced one thing with another, because sometimes such people do not recognize contradictions. How then can he testify now about what he saw in the past? But when we come to transact business with him, or in matters of divorce and marriage, and the matter is explained to him and we see that he has understood it–he is not a shoteh and is considered to be mentally competent in everything he does with clear knowledge in our presence.
Here we see how Rabbi di Trani differentiates the man in the case submitted to him from the general and restrictive definition of the peti as a shoteh. His distinction between the man and Maimonides’ peti has two parts. The first is the definition of the peti as someone who has no ability to communicate with his surrounding (severe retardation). The second is his limitation of the halakhic restriction on the peti to the specific domain of testimony, rather than every action. No doubt, the reason this case was submitted to him propelled him towards this conclusion. Were the man not allowed the legal status to take part in a valid act of halitzah, his brother’s wife might be chained to him and unable to remarry for the rest of her life. From the description of the man we may infer that he was moderate to low—functioning (responding appropriately and able to go shopping, but certainly not able to manage his own affairs).
We find a similar distinction in a the responsum by Rabbi Joseph ben Solomon Colon, known as the Maharik (France, northern Italy, 1420–1480):
But a person who is of settled mind and speaks rationally when he speaks, but does not understand practical matters as other people do–in any case, as long as he is not held to be one of those mentioned by the Sages in the first chapter of tractate Hagigah, in my humble opinion it seems that his actions are valid in all matters, because there must necessarily be some bound and criterion for the matters he is considered to understand and those he does not, inasmuch as there are some who understand little and some who understand a great deal, there are some who understand quickly, at age six or seven, and there are others who lag behind, and not all minds are equal.
A breakthrough in halakhic thought and professional diagnosis can be found in a responsum by Rabbi Yom Tov Lipman Heilpern (Bialystok, 1816–1879):
Question: [The case involves] a certain man who has a speech impediment and cannot speak clearly, to the point that it is hard to understand most of what he says and even those who know him well do not always know what he said. In addition, he is very weak-minded and does not understand everything as other persons do, but only matters with which he is very familiar–and [even such] matters he does not fully understand. He is also of very low intelligence in matters of business and cannot do arithmetic. He got married. Now his wife has taken him to a small town where no one knows the man and what he is like and they were not smart enough to realize that such a man needs to be examined to determine whether he is competent and fully understands the nature of a bill of divorce. They thought that even though he has a speech impediment his mind is whole. When his wife took him there she taught him to say “yes” when they asked him whether he wanted to give his wife a divorce. Her plan worked and they wrote her a bill of divorce which he handed to her. After he had done so she left him. This man didn’t know what had happened to him and went home alone, without his wife. But we who know the man and his intellect and see that he knows nothing about matters of divorce and was certainly not intending to divorce her, for never in his life had he known that there is such a thing as divorce and he is totally ignorant of the Laws of Moses. He does only what he sees other people doing, and does not know anything himself. This woman went and married another man, but did not have intercourse with him. After we heard all this we sent for the man who had given the divorce and examined him and [found that] he really is like a beast; his mind is incapable of understanding things accurately and he knows nothing whatsoever about divorce. So we separated the woman from the man who had married her until we could examine her case. (Thus far the question.)
First off we should note the distinction made here with regard to the man’s intellectual capacity. He can barely communicate with his immediate surroundings. He can manage only what is most familiar to him and has no ability to take the initiative. Somehow they were able to marry him off, but then his wife tricked him so she could obtain a divorce. The moment she had the divorce in hand she abandoned him and he found himself alone in his house. The questioner reports that he is acquainted with the man and knows that he has no idea of what divorce is and certainly did not intend to divorce his wife. After further examination he determined that the man is “like a beast.” Now he is asking Rabbi Heilpern to rule whether the divorce was valid.
Rabbi Heilpern’s halakhic inquiry is based on Maimonides’ definition of the peti, who is incapable of understanding things as other people do. From there he proceeds to the ruling by Rabbenu Jeroham (Jeroham ben Meshullam, Spain, ca. 1290–1350), as quoted in Joseph Caro’s Beit Yosef (§121), that the marriages of those whose minds are clear are valid, even if they are of subnormal intelligence. Rabbi Heilpern understands his source to be referring to a person who understands what he is told on some level. By contrast, a person who does not grasp matters as other people do is not of subnormal intelligence but a peti and, halakhically speaking, a shoteh.
Hence it is clear that the man in question cannot divorce his wife, because he has no idea of what a bill of divorce is and how it severs a man from his wife. It remains possible, however, that the couple’s marriage was valid, despite the man’s very low intelligence, because for that he needed only to know that you can buy something with money, as in a store (what this man does), and not that in a marriage the man “purchases” the woman. […]
Accordingly, even a peti who does not understand that this money is the crux of the marriage, his marriage is nevertheless valid. And even if he thought that he was giving her money as payment for her agreeing to marry him and that the essence of the marriage act is her oral consent, it is still valid.
This is a fascinating distinction. Rabbi Heilpern distinguishes basic functional capacity (the ability to buy and sell) from acts that require a high degree of conceptual abstraction (divorce). Even though the specific result is unfortunate (the woman is unable to remarry), we have progressed a further stage in the definition of persons with intellectual disabilities. They can be integrated into the community on the lower levels of life skills, those that do not require a high level of abstraction.
The Mind of a Child
Another (but not necessarily contradictory) early concept for diagnosing persons with intellectual disabilities is found in the Talmud and the rishonim (the rabbinic authorities of the eleventh through sixteenth centuries)–an adult with the “mind of a child.” It is interesting because it recognizes that a person’s behavioral development may not coincide with his chronological age. This idea is in fact the underpinning for all the discussions in later centuries, running through the present day. All allow that children must be protected, are not held accountable for their actions, are not sovereign over their decisions, and cannot lead an independent life. But it is equally obvious that adults are autonomous and responsible, judged by and for their actions and decisions, and expected to live independently. The situation of persons who are chronologically adults but children in their behavior led the rabbis to search for a legal definition appropriate to their status.
According to the Talmud (M Yevamot 13:2; and B Yevamot 107b), a girl in her minority who is betrothed to a man by her mother or brother but is unable to “hold on” to the ring (or other valuable object) she received to effect the transaction does not have to affirm or reject the marriage when she reaches the age of majority, as other girls do (because, in strict legality, the betrothal of a minor by anyone other than her father is invalid). But what does is the meaning of “cannot hold on” to it? The Talmud expounds the concept in a different tractate (B Gittin 64b):
Our Rabbis taught: A girl who knows how to hold on to her get [bill of divorce] can be divorced, but if she does not know how to hold on to her get she cannot be divorced. Who is meant by a girl who knows how to hold on to her get? Anyone who keeps her get and something else.
What does this mean?
R. Johanan: “It means, a girl who keeps something else in place of her get” [should it be lost].
R. Huna b. Manoah objected to this: “Such a one is simply a shotah!”
“No,” said R. Huna b. Manoah, quoting R. Aha the son of R. Ika. “It means one who can distinguish between her get and another object.”
R. Judah said in the name of R. Assi: “[A child who, if offered] a rock, throws it away, [but if offered] a nut takes it, can acquire possession on his own behalf but not on behalf of another person. [But if he is given] an article he will return it after a time [when asked], he can acquire possession either for himself or for others. When I stated this in the presence of Samuel, he said to me, ‘the two cases are the same.’”
What is the meaning of “the two cases are the same”? – R. Hisda said: In either case the child can acquire possession for himself but not for others.
The line of reasoning here makes it clear that the criterion for judging the girl’s rationality is whether she can distinguish the get from another piece of paper. R. Judah framed this terms of the difference between a rock and a nut. If she is smart enough to toss away a rock but keep the nut, she has enough intelligence to acquire something on her own behalf, and thus to be divorced (by accepting the get) or married (by accepting a wedding ring).
R. Judah separates the ability to discriminate between different objects (she throws away a rock) from the capacity to hold on to something (she returns an article when asked). The former indicates that a person is at a basic level of responsibility (acquires possession for himself but not for others), whereas the latter reflects a higher level of autonomy (acquires possession both for himself and for others). Samuel does not accept this distinction and counters that “the two cases are the same.” R. Hisda explains that he meant that holding on to an object for a time and then returning it does not demonstrate that a person is fully responsible; he remains at the lower level of “acquires possession for himself but not for others.”
Now let us see how these theoretical principles are applied in the real world.
How the Halakhic Decisors Treat Persons with Intellectual Disabilities
Rabbi Simha of Vitry and Rabbi Eliezer ben Joel Halevi: A Woman’s Right to be Protected versus a Man’s Obligation to Reproduce
An exchange of letters that bears on our topic took place among medieval rabbis in Ashkenaz (northern France and the Rhineland), who considered whether a woman with an intellectual disability could accept a get and be divorced. The question was asked by Rabbi Simha of Vitry (a pupil of Rashi’s), who set forth the case as follows: A couple had married when both partners were of “sound mind.” Some years later, after losing her child, the woman went mad. The husband did not leave his wife, even though the rabbis in his town warned him that they could no longer have intercourse, because, not being of sound mind and aware of her actions, she could not cleanse herself from the state of niddah (menstrual impurity). It is clear that this woman did not exhibit the signs of a shotah as described in the Talmud, but she did suffer a severe disability that prevented her from responding to her surroundings. It was impossible for her to purify herself, because she could not count her “clean days.” Hence she did not go to the mikveh and her husband was not permitted to have sexual relations with her. The man could not avail himself of the simple solution of taking a second wife, as permitted by the Torah, because he lived in Germany in the early generations after the ban on polygamy promulgated by Rabbenu Gershom of Mainz (ca. 960–1028). Although the man was left without a functioning wife and without children, he did not leave her. Given the situation, Rabbi Simha of Vitry asked his colleagues to join him in authorizing the man to divorce his wife. The dilemma facing them was harsh. The rabbis’ hands were tied by the ban of Rabbenu Gershom, which ruled out a second wife. The man was willing to divorce his wife and marry another woman, but she was unable to accept the divorce because she was mentally incompetent. Rabbi Simha notes the serious nature of the case and says that the man “should not on this account go to the grave without offspring.”
This unfortunate man stands here and wails, alas for my wife and alas for the other [obligation of procreation], and does not know how he can divorce her. If so, should he spend the rest of his life with her and not fulfill the precept of procreation? In such a case one does not need great wisdom and counsel to conclude that he should not die childless. Consequently, my masters, may this matter be considered by those of your stature, my master and teacher the elderly Rabbi Ephraim and my teacher Rabbi Eliezer the son of Joel Halevi, who will clarify for us what is meant by “she knows how to hold on to her get” in the case of a shotah.>
Rabbi Simha expresses the urgent and essential need for his colleagues to study the matter in depth and find some way to permit the man to divorce his wife. The goal of his letter is to persuade them to join him on a rabbinic court that will permit the man to divorce his wife.
Following the standard procedure for a scholar who is presenting an issue to his colleagues, Rabbi Simha begins with a talmudic passage (B Yevamot 113a-b) in which the Sages discussed the degree of mental competence required for a woman to accept a bill of divorce:
R. Johanan b. Gudgada testified that a deaf girl whom her father gave in marriage may be divorced. […]
Rava stated: “From the testimony of R. Johanan b. Gudgada [it may be inferred that if a husband] said to witnesses, ‘See this bill of divorce that I am giving [to my wife],’ and told her, ‘Take this promissory note,’ she is nevertheless divorced. For didn’t R. Johanan b. Gudgada say that [the woman’s] consent is not required? Here too her consent is not required.”
Rabbi Simha begins by quoting the statement by Rava in this Talmudic passage. Rava held that there is a way to divorce a woman of subnormal intelligence. From this Rabbi Simha infers: “Hence if her intelligence is low and she does not know what a legal document is, but when they give it to her she holds on to it as if it were an ordinary sheet or paper– that suffices.”
As noted above, the Talmud explains what is meant by the woman’s holding on to a bill of divorce in Tractate Gittin: “[If offered] a rock, he throws it away, [but if offered] a nut he takes it.” It is clear that a woman must have a rudimentary understanding and an ability to distinguish between two objects, or between an article of value and one that is worthless, in order to be deemed competent to accept her get. Rabbi Simha learns from this that an adult woman with the mind of a child “is deemed to be mentally competent in all her actions.” He proposes to his colleagues that if they do not agree with his opinion that a divorce is possible in this case, they will agree to waive the ban of Rabbenu Gershom and allow the man to take a second wife so that he can fulfill the precept of fathering children.
Rabbi Simha believes that if the woman accepts a piece of paper (in this case, the bill of divorce) in front of witnesses, the divorce is effected automatically. She need only understand that she is holding a piece of paper that she has to keep; its contents are immaterial. Rabbi Simha compares the woman’s ability to hold on to the bill of divorce (as simply a piece of paper) to the Mishna in Yevamot we have looked at above and its exposition by the Gemara in Gittin, which define the level of understanding required of the girl.
On this basis, Rabbi Simha asks his colleagues to join his opinion and permit the man to divorce his wife, since even though the woman would not understand the implications of the bill of divorce she could hold on to it for a moment.
In his reply, Rabbi Eliezer ben Joel Halevi (known as the Ravyah; Germany, 1140–1225) refused to cooperate with Rabbi Simha:
We have briefly responded to our teacher Rabbi Simha about the woman who has gone mad. Be it known to our teacher that we have seen the son of Rabbi Samuel ben Azriel of Mainz, whose wife was unresponsive to her surroundings and a shotah, like the woman you have written about. He and his father came to the Council of Communities, where they interrupted the prayers and repeatedly pressed his inability to fulfill the precept of reproduction. He asked that the ban of the great sage Rabbenu Gershom be waived, but they were not willing to do so, saying that it was better to lose one soul than to corrupt the future generations.
He also went to Bonn, but to no avail; for our rabbis would not agree to waive the ban. Consequently we too fear to agree lest this lead to corruption. […]
From your words we understand that she lacks even the mind of a child, and you acknowledge [that such is the law] in the case of a girl. But because she is older, you say, the smaller measure of “throws away a rock but takes a nut” suffices, as you would prove from [the ninth chapter of tractate Bava Batra], that an adult of 20, even if he does not know the nature of commerce, has more power to sell his father’s assets than one who is younger than 20 and does understand the nature of commerce. But this is not so; for we say (B Bava Batra 156a) that “the law [is] in accordance with Giddal b. Menashya” that [a boy aged thirteen and a day who understands the nature of business transactions] may sell property inherited from his father even before the age of 20. And even according to the opinion of some of our rabbis, who interpret Giddal’s ruling as referring to his own property and not his father’s property, because of the contradiction between two different statements by Rava–if you consult the codification by Rabbi Isaac Alfasi you will see that the cases are not similar, because even if he does not understand the nature of business transactions, he is intelligent in all other matters. But one must say that if an adult woman does not have the mental capacity of a child, her status is less than that of a girl, because the latter already has achieved mental competence. It was our rabbis who instituted [that a woman who is mentally incompetent may not be divorced], to keep her from being treated as ownerless property–and we will not breach this boundary.
Rabbi Eliezer acquaints Rabbi Simha with a relevant precedent. A certain Rabbi Samuel ben Azriel wanted to rescue his son from a similar situation. The woman in that case was “unresponsive to her surroundings and a shotah,” meaning that she did not display the strange behaviors that would place her in the talmudic category of shotah. Rabbi Eliezer’s description of Rabbi Samuel’s campaign on behalf of his son is intriguing. The father traveled among the Rhineland communities, where he would interrupt the prayer services and appeal to the rabbis to waive the ban of Rabbenu Gershom. But the rabbis response was stern: “Better to lose one soul than to corrupt the future generations.” They were not willing to surrender to the tears of the distressed and grant an exemption from a provision that had been enacted to redress an unjust aspect of the institution of marriage.
According to Rabbi Eliezer, the minimum intellectual level for integrating a person into normal life is the mental capacity of a child. Rabbi Simha wanted to supplement this with a person’s life experience (chronological age), but Rabbi Eliezer disagreed.
Here Rabbi Eliezer arrives at the crux of the definition of the mental capacity a woman must have in order to accept a bill of divorce. He distinguishes between the bare ability to differentiate articles of value from those that are worthless (the rock and nut), on the one hand, and the more advanced capacity to understand the nature of business transactions, on the other.
From Rabbi Eliezer’s response we infer that Rabbi Simha would have made do with the lower level, the ability to distinguish between valuable and worthless objects, because the woman is already an adult. That is, Rabbi Simha wants to rule that even though, as a general principle, the intellectual bar required for a divorce is higher and requires comprehension of commercial affairs, in the case of an adult her earlier development is a sufficient condition. Rabbi Eliezer rejects this notion: as a matter of halakhah, the minimum capacity for a woman to be divorced is that she understands the nature of business transactions.
The reason for this stringency and his opposition to allowing the man to divorce his wife stems from a talmudic enactment that was intended to protect a woman from being left vulnerable in a hostile world, as enunciated by Rabbi Isaac (B Gittin 71b):
R. Isaac said: “As a matter of Torah law, a shotah can be divorced, just as a woman of sound mind can be divorced without her consent. Why did the rabbis say that she cannot be divorced? In order that they not engage in licentious behavior with her.”
The responsibility for the woman’s safety outweighs the desire to find a solution for a man who is trapped in a marriage. Rabbi Eliezer holds that their duty to protect the woman leads him and his colleagues to be strict in this matter. Just as we do not allow a woman to be divorced against her will, neither do we allow a woman of unsound mind to be thrown out into the world. The man’s fate has been tied to the woman’s and her safety depends on him.
We can conclude our discussion about the concept of the mind of a child with remarks by Rabbi Elhanan Wasserman (Lithuania, 1875– 1941), in which he defines the difference between two degrees of knowledge in children:
There are two categories that pertain to children: (1) A child who has not attained any degree of intellectual competence is a shoteh. (2) An intelligent child whom we see is on the level of an adult. Nevertheless, his acts are of no avail, because this is the decree of the Scripture, which [in all legal contexts] has “a man” and not “a child,” meaning that a child’s action is ineffective for transacting a valid acquisition or betrothal. […]
We have found that the rabbis instituted that transactions by children are valid transactions–namely, that acquisition by a child is valid and an adult is not required; but he still must have mental competence and not be in the category of the shoteh, and this is the “mind of a child.”
This definition can function in the reverse direction as well and apply to a person who is a chronological adult but lacks the mental capacity of a child. In such cases we must define the person’s actions in accordance with the laws that apply to children and take no account of his age.
Rabbi Joseph Colon’s Responsum that Permits Halitzah by a Man who suffers an Intellectual Disability
Rabbi Jacob of Maestre wrote to his colleague Rabbi Joseph Colon, urging him to cosign the authorization for a young man with intellectual disabilities to engage in the halitzah ritual with his brother’s widow. At the very start of his responsum, Rabbi Colon inserts an important note: “His honor has seen the young man and can judge by what his eyes have seen. But I have not seen him, and one does not tell a person who has not seen the new moon to go and testify.”
As we saw earlier, Maimonides wrote that whether a person falls into the category of those “who are feeble-minded in the extreme” depends on the judge’s discretion. Rabbi Colon proceeds in the same direction and informs his questioner that it is impossible to define the status of such a person without actually observing him. Nevertheless, he expounds the law that applies to the issue at hand.
From the information in Rabbi Jacob’s question we learn that the case involves a person who does not correspond to the Talmudic definition of insanity (B Hagigah 3b). That is, he does not tear his clothes, he does not go out alone at night, and he does not lose whatever he is given. The questioner attempts to characterize the man and his social behavior as the antithesis of the shoteh:
He goes about dressed and his clothes are clean, which is the opposite of one who tears his garments; he asked his father to mend his boots against the cold; he is smart enough to hold on to things; and can tell his father what he believes will be good for him–as when he told him that the Gentile had brought two pieces of leather to sell and he thought about making a profit; and he saves his money and remembers that he put his money in his strongbox, which is the opposite of losing what one is given; nor does he walk out alone at night, nor is he considered to be a person who sleeps in the cemetery. And even though his mind is not as clear as other people’s, in any case we can rely only on what the Sages said.
Rabbi Colon begins by associating the law of halitzah with the requirement that a person understand the nature of business transactions. Both the ritual and commerce require a certain degree of comprehension and capacity to make distinctions. Rabbi Colon then advances a more forceful argument, in which he draws an essential distinction between persons who show the symptoms of insanity and those suffering an intellectual disability that is not insanity. He adduces the story in Tractate Bava Batra (155b), in which a teenage boy’s relatives, hoping to have his sale of his father’s estate invalidated, tell him to throw date seeds at the rabbinical authority; as a result, the judge at deems him insane, because such behavior is not expected of a normal person. All the symptoms of insanity presented by the Talmud are examples of unexpected and inexplicable behavior. But the man in the case submitted to Rabbi Colon does nothing out of the ordinary. We have already seen how Rabbi Colon defined the basic principle, and his remarks merit repetition here.
But a person who is of settled mind and speaks rationally when he speaks, but does not understand practical matters as other people do–in any case, as long as he is not held to be one of those mentioned by the Sages in the first chapter of tractate Hagigah, in my humble opinion it seems that his actions are valid in all matters, because there must necessarily be some bound and criterion for the matters he is considered to understand and those he does not, inasmuch as there are some who understand little and some who understand a great deal, there are some who understand quickly, at age six or seven, and there are others who lag behind, and not all minds are equal. Thus you learn that we have only what the Sages stated in the first chapter of Tractate Hagigah as to who is accounted a shoteh.
The assertion here is that once a person is no longer considered to be a shoteh he regains the status of a normal person. There will always be a difference in people’s mental powers–“some who understand little and some who understand a great deal, […] and not all minds are equal.” This is one of the most important responsa that sever the classification of a person with intellectual disabilities from the laws of the shoteh and, on the contrary, invoke the talmudic principle that the “burden of proof falls on the claimant.” As long as it has not been proven that a person is incapable of participating in normal human life he must be considered to be the same as everyone else.
This is the challenge that faces us–not only to reformulate concepts but also to enlarge and frame our language so as to create a broad movement that perceives human beings as created in the image of God before they are thrust into the narrow conceptualization that fixes their place and how other people think about them.
1. Review of Social Services in 2009, Chapter 8 (online).
2. Haya Aminadav and Dalia Nissim, “The Sequence of Residential Services for Persons with Intellectual Impairment: Trends and Changes” (online).
3. Pioneering and important work in this field was done by Rabbi Moshe Mordechai Farbstein in his comprehensive study of the topic, Laws of Competency: Halakhic Inquiries and Clarifications relating to Competency and the Laws of the Shoteh (Jerusalem: Sha’ar Mishpat Institute and the Rabbinic Courts Administration, 1994/5) [Hebrew]. Many of the sources cited here were collected by Rabbi Farbstein, but my analysis differs from his.
4. Maimonides, “Laws of Witnesses” 9:10.
5. Responsa Hatam Sofer, Even Ha’ezer II, §2.
6. According to the Talmud, B Yevamot 112b.
7. Falk, Sefer Me’irat Einayim, Hoshen Mishpat 35:10.
8. Responsa ha-Maharit, Even Ha’ezer, §16.
9. New Responsa ha-Maharit, §20.
10. Responsa Oneg Yom Tov, §153.
11. In his account, Rabbi Simha alludes to the possibility that the neighbor women could help prepare her for immersion. This is an issue discussed in B Niddah 13, and cited by all halakhic decisors. See, for example, Shulhan Arukh, Yoreh De’ah 196:8: “So too in the case of a shotah or a woman who has lost her mind because of an illness, mentally competent women must examine her and determine her menstrual period so that she may be permitted to her husband. Once her menstrual cycle has been determined, they are like all other women.”
12. Responsa ha-Raviyah, §921.
13. Rabbi Elhanan Wasserman, Annotations on Tractate Yevamot (Jerusalem: Yeshivat Or Elhanan, 2002/3), p. 224, §66.
14. New Responsa ha-Maharit, §20.
15. I first heard this idea enunciated by the late Professor Reuven Feuerstein,shortly before his death, at a Feuerstein Institute conference on the about the marriage of persons with intellectual disabilities. After about an hour of discussion, Professor Feuerstein pounded on the table and scolded us: “I do not understand this discussion at all. We are talking about natural human rights, and a claimant who would deprive another of something in his possession must prove his case.” I do not know whether Professor Feuerstein was acquainted with Rabbi Colon’s responsum, but the spirit is certainly the same.