Synopsis of Presentation
Conference on Jewish Medical Ethics
San Francisco, CA
February 18-20, 1996
I. Secular law is primarily concerned with who gets to make a decision. Courts and legislatures are thus preoccupied with advance directives, surrogate decision-making, ethics committee, IRB’s etc. This is so because the primary value the law seek to enshrine is the autonomy of the individual. Thus, once we identify the “who”, we essentially have no interest in the “what”. By contrast, Jewish law is far more interested in the substance of what the decision should be and in theory, the resolution should not depend on the identity/personal predilections of the decider. Secular law asks who decides; Jewish law asks what is to be decided.
II. Limited Role of Autonomy in Jewish Law
A. My body is not my own; it is the property of G-d who has entrusted it to me for care and preservation. Thus, the premise of the pro-choice movement (we have absolute control over our bodies) is fundamentally flawed (even apart from the fact that abortion involves a fetus as well as a mother). There is even discussion in halachic literature concerning the permissibility of elective cosmetic surgery both in terms of the surgical risks and in terms of the “mutilation” of G-d’s property. (By and large, however, it has been validated).
B. R. Shlomo Yosef Zevin wrote a classic article demonstrating that in the Merchant of Venice, Antonio’s contract with Shylock to pay a pound of flesh in the event of a loan default is unenforceable under Jewish law. Just as Antonio cannot pledge assets that he doesn’t own, he cannot create such a pledge on his body.
III. Limited Role of Charisma/Inspiration
Halachic decision-making is not a matter of a Rabbi secluding himself in a room and getting a direct answer from G-d which he then communicates with ex cathedra authority. Indeed, based on the verse, “It [the Torah] is not in Heaven”, the Talmud declares that prophecy and Divine inspiration cannot be taken into account in the resolution of halachic questions. All halachic resolution depends on a solid empirical grounding in the facts coupled with a reasoned application from the primary texts that Jewish law considers to be definitive, e.g. Talmud, Codes. Ad hoc decision-making that is not rooted in these texts is generally illegitimate.
IV. Written Torah/Oral Torah
Although the Pentateuch is the highest source of law in Judaism, the meaning of that written Torah can be understood only by means of the simultaneous oral interpretation that was handed down with it (the Torah She’Bal Pe). In its essence, the Torah She’BaI Pe was a core of principles and interpretations. Like a snowball, the core which originated in Divine revelation grew larger and larger as each generation had to apply these core principles to new situations, applications which sometimes generated disagreement (machloket). Although the core principles were part of a received tradition, the specific applications were the function of the Torah leadership/halachic authorities in each community to apply.
This growing “snowball” or avalanche was preserved orally for hundreds of years. Indeed, Jewish law forbade the writing down of the oral law, perhaps to insure that the meaning of the tradition would be communicated through flesh and blood human interaction, rather than exclusively through a literary medium. (It should be noted that many cultures – Native American, ancient Greece – preserved huge amounts of data through oral transmission for hundreds of years.) Only when (as a result of Roman persecutions in the first and second centuries of the common era) the oral law was in grave danger of being forgotten was it reduced to some type of written form as the Mishna. Several hundreds of years of commentary on the Mishna eventually formed the work known as Gemara. (There is both a Babylonian and Palestinian Gemara though the Babylonian is regarded as the more authoritative.) Mishna and Gemara together form the work known as Talmud, second in importance only to the Pentateuch but whose influence on Jewish law has even been greater.
V. Talmud: Source of Principles of Jewish Law
The Talmud, particularly the much larger portion known as Gemara, is not a code of law; it rarely provides definitive halachic rules. It is rather a transcript of hundreds of years of debates espousing a multiplicity of positions. It illuminates the process and conceptual structure of halacha through reasoned analysis, logic, analogy, and proof-text but does not indicate a final rule. All halachic decision-making, however, is ultimately grounded in Talmudic conceptualization. The classic and definitive codifications of Judaism – Rambam’s Mishna Torah, Tur, and Shulchan Aruch are all based on conclusions derived from the Talmudic sugyot (treatments). The responsa literature – a vast body comprising thousands of volumes from every part of the world – attempts to apply Talmudic discussions and the rulings of the codes to contemporary situations, thereby insuring that halacha remains a living, vital tradition.
VI. Halachic Reasoning: Combination of Inductive and Deductive Logic
Halachic reasoning, in common with all reasoning by analogy, involves a combination of inductive and deductive logic. First, relevant primary data – rulings in particular cases extracted from Talmud and Codes – have to be identified and collected. Second, through inductive reasoning, a hypothesis is formulated that explains the specific collection of rulings by reference to a more general principle. Third, through deductive reasoning, this principle can be utilized to apply to new situations that are not explicitly covered by the earlier rulings but can now be subsumed under the principle that is believed to explain those earlier rulings. Uncertainty, ambiguity, and disagreement among halachic scholars can arise at any stage of this three-stage process.
Identification of Primary Data: Widely scattered, not centrally located, no real indexing. Especially in case of Talmud, concepts that are highly relevant in one area, e.g., laws of Shabbat, may be discussed extensively in an apparently unrelated areas, e.g., marriage. Moreover, various rulings or conclusions that appear to be stated as definitive in the course of a discussion may not survive the conclusion of a debate though the Talmudic text does not always make this point clear. Moreover, even conclusions that appear to be “final” may be contradicted, superseded, or modified by other sugyot or subjected to limitations or conditions not apparent from a particular discussion but derivable by implication from another Talmudic source.
Even after the primary data and rulings have been identified, there remains the problem of interpretation – what does Rule X say? What does Rule X mean? There may be sharp disagreements among commentators and codes.
Generalization: As is true in physical science, data may often a variety of hypothesis and the plausibility of a given explanation may to multiple views.
Application: Finally, the third stage which involves the application of the generalized principle to new cases may pose difficulties in determining whether nor not the “new case” fits the parameters enunciated by the principle. This may require a reexamination or reformulation of what the generalization really encompasses as well as a careful understanding of the factual aspects of the “new case” to determine whether it is embraced by the paradigm.
“Cheating”: Not every rabbi engages in this process for every question. In daily practice, we do not always reinvent the wheel and will often rely on the decisions of the great poskim of our day. Nevertheless, even if in practice most rabbis simply “follow the authorities”, someone – e.g., R. Moshe, must go through all the steps of the process.
VII. The Crucial Importance of Knowing and Understanding the Facts on the Ground:
Even if the rabbi has full mastery of the halachic sources, his decisions are likely to be incorrect unless he fully understands the medical background of the case. Garbage in = Garbage out. See Dr. Keilson’s article reproduced in the loose-leaf that rabbis may be characterized along the lines of the Four Sons of the Pesach Hagada:
(1) Wise – the one who knows how to ask the proper questions and evaluate the response.
(2) Evil (or incompetent) – fairly rare, the one who halachic expertise to render a valid decision.
(3) Simple – a rabbi who doesn’t really understand the issue in a case.
(4) One Who Doesn’t Even Ask – a rabbi even if learned who rules without even consulting with the physicians as to what the medical facts are.
VIII. The “Art”/Judgment of Proper Pigeonholing:
The critical importance of defining the question so that the appropriate analogies will be drawn. If an external phenomenon is perceived or described in a certain way, then one set of halachic categories and constructs will be brought to bear. If the situation is perceived differently, other halachic concepts may become relevant. The process of “shaping” or identifying the critical and significant components of the phenomenon is often the most crucial step in being able to resolve the halachic quandary properly. Thus, sheealat chacham chatzi teshuvah” – “the question of a wise man is half the answer.”
IX. The Role of Subjectivity in Psak
In theory, psak halacha should not be subjective but is to predicated exclusively on the posk’s objective understanding of the principles of Jewish law as derived from its authoritative sources. In cases, however, of genuine unresolved disagreement (some authorities conclude one way, others conclude another way), the halachic system does contain within its own structure the recognition of extenuating circumstances that may allow the consideration of particular “extralegal” factors in a case. These include, in part, concepts such as “hefsed merubah” (great financial loss), “shaat ha’dechak” (a situation of urgency), “shalom bayit” (promotion of domestic tranquility in a marriage), “darchai noam” (the ways of the Torah are ways of pleasantness, not dissention). It must be emphasized that these factors alone are rarely taken into account in determining halacha on a primary level. In the event that the objective halachic considerations are balanced in both directions, however, these subjective factors will often tip the scale.
(I should also note that some subjective conditions become objectively significant even on the primary level. For example, abortion is halachically permitted if the continuation of the pregnancy endangers the mother’s life. This endangerment may very well include severe psychiatric trauma which carries a suicide risk. Whether or not a given event, e.g., rape or incest, creates such a risk depends entirely on the subjective mental state of the women. Obviously, the Rabbi cannot answer such a question with his nose buried in the books, but must be sensitive to the individual characteristics of the questioner.)
X. Hearing the Question Not Asked
The burden of identifying the question and ferreting out the information does not rest on the questioner who after all may be ignorant of what Jewish law regards as significant. Moreover, it is not enough to simply answer the precise question asked – the rabbi must have the sensitivity to address the “questions behind the questions” – concerns that might be implicit in the question asked but which were not explicitly articulated by the questioner. Thus, the rabbi must be more than the equivalent of an on-line database.
Story: A woman once asked the Bais Ha’Levi (the Rav of Brisk; great-grandfather and namesake of Rabbi Joseph B. Soloveitchik of Boston) whether one could fulfill the obligation of the Four Cups at the Seder with milk? The Bais HaLevi answered in the negative and immediately gave the woman funds to buy meals for all of Passover. His disciples asked him why didn’t he just give her enough money for wine. His answer – the last two cups of the seder are drunk after the meal. If the woman plans to use milk for the last two cups, it could only be because she has neither meat nor chicken to serve at the Seder meal. If there is no meat or chicken for the Seder – usually the most festive Pesach event – there is obviously none for the rest of the holiday. She accordingly needs funds for the entire holiday. The duty of the rabbi is to address the entire problem or more accurately, the whole person – not merely the segment of the problem that is explicitly raised.
Lesson: A rabbi answers a questioner – not a question.
XI. The Individualized Nature of Psak Halacha
R. Yitzchok Hutner, a renowned Rosh Yeshiva, once told a disciple: “Do not rely on anything that I ever said to someone else. Each psak is unique.”
See also the comments of R. Moshe Feinstein in the introduction to his first volume of responsa (Igrot Moshe Orach Chayim I) where he writes that his responsa represent suggested approaches and general guidelines with each rav using his own judgment and discretion in applying the responsa to the facts of his particular case. Moreover, R. Moshe argues that each rav bears the responsibility of analyzing the primary sources on his own rather than blindly accept R. Moshe’s reading of them.
Note: These warnings are commonly disregarded in practice. We often “cheat” and apply R. Moshe’s rulings mechanically without analysis of the sources, without full knowledge of all the circumstances of R. Moshe’s own psak (some of which may not always be stated) and without full consideration of all of the unique circumstances of the case upon which the rabbi is called to rule.
XII. The Importance of Empathy and Respect for the Feelings of the Questioner Even Where Consideration of Such Feelings Has No Direct Impact on Halachic Resolution. (This is equally true for physicians as well.)
XIII. Pluralism and Mutual Respect in Halacha
Unlike mathematic truth where there can only be one “true” answer (1 + 1 can only be two – but even here, there may be multiple answers in non-Euclidean systems), halachic truths can be multiple. Thus, the Talmud states concerning the opposing and inconsistent views of Bait Hillel and Bait Shammai: “Elo U’Elo Divrei Elokim Chayim”. “These and those are words of the Eternal G-d”. This is so because ultimate truth is not a point but a process – as long as there is commitment to the theological postulates of the system (e.g., the Divine origin of the Torah) and to the accepted halachic methodology and use of authoritative texts, any conclusion that the conscientious rabbi arrives at will have the imprimatur of valid psak even if in some sense it is not quite “what G-d may have intended.”
Story: The Talmud relates that R. Eliezer disputed the view of the Sages concerning the ritual impurity of an oven. Refusing to concede his position, he declared: “If the law is like me, let the carob tree uproot itself.” The tree did but the Sages declared, “We don’t listen to trees.” He then continued, “If the halacha is like me, let the river reverse its course.” It did but the Sages stated, “we don’t listen to rivers.” He then said, “If the halacha is like me, let the walls of the study hall collapse ” The walls were about to collapse but R. Yehoshua ordered them to remain. Uncertain how to proceed, the walls remained in a slanted position. Finally, R. Eliezer called out the big guns: the support that had in fact been the basis for the three miracles, G-d Himself. G-d declared, “R. Eliezer is correct.” Amazingly, the Sages refused to accept even the direct opinion of G-d and declared, “Lo BaShamayim He” – the Torah is no longer in heaven. It was given to human beings to interpret and apply to the best of their abilities; prophecy, charisma, miracles are not determinative and even if a given halachic decision may be in error, it is validated by adherence to the process which the Torah itself sets up. When there is a supreme body like the 70-member Sanhedrin, their decision (by a majority) would be binding and preclusive on the minority dissenters but in the absence of such an authoritative body (as is the case today), there can indeed be multiple halachic approaches to many questions with none of them being “wrong” or “illegitimate”. (Note, however, that I am not suggesting infinite flexibility – there are clearly standards and parameters that are absolute but as is obvious to any student of halacha, within the framework there is room for play at the joints.)
XIV. The obligation to develop a relationship with a rav on a permanent rather than ad hoc basis: “Aseh I’cha Rav” – “make for yourself a teacher.” (Pirkei Avot).
A. Rav should be knowledgeable in particular area – whether medicine, business, etc.
B. Know you as a person to be able to take account of individual circumstances.
C. Improper to “shop around” – looking for the rav who will always give you the answer you want. However, with respect to categories of questions, it is legitimate to have one authority you turn to for medical issues and one for kashrut or marriage counseling if you feel that one rav is less qualified in a particular area. I reiterate, however, this should not be done simply because you like one rabbi’s answers more. Rather your decision, should be based on general considerations of competence, judgment, and experience.
D. A good rav like a good doctor knows when to refer to greater authorities or to non-rabbinic experts, e.g., therapists, psychiatrists and the like.
See generally Berel Wein’s article reproduced in the loose-leaf materials.
Valuable Halachic Sources in Medical Halacha (very partial)
Dr. Abraham, Nishmat Avraham (4 Volume).
Assia (Israeli journal on medical halacha – ed. by Dr. Steinberg).
Bar-Ilan Computerized Responsa Project – hundreds of volumes of responsa on CD-Rom with search capacities; full text retrievals; in Hebrew only.
Rabbi Bleich, Contemporarv Halachic Problems (4 volumes to date)
Rabbi Bleich, Judaism and Healing
Nehorai – Specialized computer data base for medical halacha; special strength is its list of search terms.
Dr. Rosner, Modern Medicine and Jewish Law
Dr. Steinberg, Encyclopedia L’Hilchot Refuah (5 volumes to date)