STACK ANNEX 116 342 Ke Defective in Jewish aw and literature Eg A PAPER READ BEFORE THE NEW YORK BOARD OF JEWISH MINISTERS BY RABBI JOEL BLAU, B. A. NEW YORK BLOCH PUBLISHING COMPANY 1916 Copyright, 1916, by BLOCH PUBLISHING COMPANY CONTENTS INTRODUCTION 1 GENERAL CONSIDERATIONS 3 LEGAL STATUS 9 (a) Chasakah 9 (b) Zechiyah 10 (c) Inheritance 10 (d) Sales 12 (e) Honor 13 (f) General Legal Standing 13 (g) Status of the Blind 14 (h) Marriage and Divorce 14 RELIGIOUS STATUS 17 THE AGGADAH 20 2117616 THE DEFECTIVE IN JEWISH LAW AND LITERATURE INTRODUCTION There are two typical attitudes toward the phenomena of existence. One may simply take these phenomena for granted, unquestioningly, uncom- plainingly. Whatever their cause and origin, they are here and must be dealt with somehow. They must be adjusted to men and men must be adjusted to them, according to the demands and limitations of the individual and of society. Or again, one may refuse to take them for granted. One may go behind these phenomena and inquire into their cause. To him who adopts the latter attitude, practical means of adjust- ment are not satisfactory, his concern being to find those higher, ideal adjustments whereby life as a whole, with its light and shadow, may be shown to conform to the laws of mind and morals, of reason- ableness and righteousness. The difference between these two attitudes is particularly apparent in the case of such phenomena as introduce jarring discord into human life. Facing 1 2 The Defective in such discord, the problem of the human mind is : How is it to be brought into harmony with God's creative plan? with God's attributes of justice and mercy? Now, one may simply ignore this problem, saying that this is one of the "hidden things that belong to the Eternal," and then proceed to deal with the "revealed things that belong to us." Causes are hidden, but, effects are revealed; and one may be content to deal with the human effects rather than with the divine causes of existing ills. Or again, one may boldly venture into the region of causality and, troubled by the wailing sounds and festering sights of human suffering, one may ask the age-long question of a Job or a Jeremiah, How can God afflict the sons of men so grievously ? In a word, the one attitude deals with a scheme of human government, the other, with a scheme of divine government. These attitudes, as here set forth, are represented in Jewish Literature by the Halacha and the Aggadah, respectively. In this broad view, of course, the terms Halacha and Aggadah are not to be taken as referring merely to the Talmud and Midrashim but also to the Bible, for the Bible, too, has its Halachistic, or legalistic contents, as well as its Aggadistic, or non- legalistic portions. Whether in the Bible or in the rabbinic interpretations, this characteristic distinction between Halacha and Aggadah can be traced through- out. The Halacha does not concern itself with the causes of phenomena, only with their effects. It does not seek for an ideal world-view; it views the world as it is and deals with it in a practical way. The Jewish Law and Literature 3 Aggadah, on the contrary, searches for the causes of things causes that lie concealed in the lap of God whose workings, though seemingly evil, are yet per- ceived to accord with His eternal goodness. Since now the distressing phenomenon presented by the existence of mentally and physically defective men and women is one of the discordant elements of human life, we should expect to find with regard to it a marked difference between the attitude of the Halacha and that of the Aggadah. The Halacha accepts the phenomenon of Subnormality and tries to bring it into right relations with man; the Aggadah inquires into the why and wherefore of Subnormality and en- deavors to bring it into right relations with God. General Considerations The Halacha deals chiefly with the following types of Subnormality: 1. Cheresh deaf-mute or deaf ; 2. Illem mute ; 3. Shoteh feeble-minded, monomaniac, or insane ; 4. Nichpeh epileptic ; 5. Suma blind ; 6. Tumtum ve-Androgunos Neuter and Her- maphrodite ; 7. Saris ve-Aylonith the sterile in both male and female. It is to be noted that Deafmutism and Insanity are most frequently met with in the Halacha, much more frequently than all other types of Subnormality. We 4 The Defective in are nevertheless not justified in inferring from this circumstance that these two afflictions were the most prevalent ones among Jews ; rather is the explanation to be found in the fact that these are the farthest departures from the normal state, and hence called for numerous special measures. Further be it noted that the Talmud as well as the Codes always mention the deafmute and the insane together with the minor as belonging to the selfsame class of the legally incompetent and mentally irrespon- sible. Deafmutism according to the Talmud consti- tutes a mental defect no less than a physical affliction. The rabbinic dictum is : "Cheresh lav bar deah hu" 1 But the disqualifying element-in deaf mutism is rather deafness than dumbness. Maimonides, in his Com- mentary on Terumoth, declares that the cause of dumbness lies in congenital deafness. 2 Hence the tendency in the Codes specifically in the Yad Hachazakah and the Shulchan Aruch is, on the whole, to include the deaf who speak with the deaf and dumb in the same legal provisions, though it is conceded that the former, unlike the latter, may be of sound minds. 3 There is, however, scarcely any doubt about the mental competency of the illem the dumb who can hear though, by reason of his affliction, he is to some extent legally disqualified; for in the case of the hearing mute the ear is an ingress to the iChag. 2b ; Git. 23a. 2 Terumoth I, 2. The statement, in the same passage, that the "illem" was included by the Rabbis in the definition of "cheresh" is unintelligible and does not tally with the known .Rabbinic pronouncements on the subject. 3 Maim. Yad, Eduth IX, 11. Jewish Law and Literature 5 understanding. In the Talmud, 4 the verse : "That they may hear and that they may learn" 5 is applied also to the hearing mute, who can learn because they can hear ; and in corroboration of this, a touching story is told of two mutes who listened diligently to the teachings of R. Yehudah Ha-Nassi, their heads nodding and their lips moving with the vain effort to speak. Rabbi took pity on them and prayed for them, whereupon they obtained the power of speech and were found to be well-versed in all the disciplines of the Law. As we follow the evolution of the Talmudical law concerning the divers classes of mutes through the various codes, the matter becomes more and more involved ; but the impression gained throughout is, that the original law is gradually applied with increas- ing rigor even to such mutes as cannot be classed among the mentally incompetent. Originally, the in- tention of the Rabbis seems to have been to disqualify the hearing-mute and the speaking-deaf solely on technical grounds in cases where the faculties of speech and audition are indispensable requirements. For instance, the deaf though speaking, and the mute though hearing, cannot serve as witnesses, since they cannot comply with the requirements of "hearing" and "telling" adumbrated in Lev. V, I. 6 But in other respects, where the question of mental soundness is not at issue, there was no intention to disqualify these two classes of mutes. In fact, the Mishnah 7 lays down the 4 Chag. 8a. 5 Deut. xxxi, 12. Git. 71a. 7 Terumoth I, 2. 6 The Defective in principle that wherever the word "Cheresh" occurs, only the deaf-mute are meant thereby; and the Gemarah, 8 in quoting this Mishnaic principle, cites in support thereof, a Baraitha which expressly declares that both the speaking-deaf and the hearing-mute are to be dealt with as mentally competent, though this same Baraitha, harking back to the Psalm-verse : "And I am like a "Cheresh" that heareth not and like an "Illem" that openeth not his mouth," 9 holds that the term Cheresh refers both to deafmute and speaking- deaf. It is plain, therefore, that while as a matter of terminology the speaking-deaf are classed with deaf- mute, as a matter of law they are classed with the hearing-mute. Nevertheless, this principle is not sustained in the Codes. For instance, in the matter of the validity of sales negotiated by the various kinds of mutes, R. Jacob b. Asher in his Tur, 10 basing himself probably on the Mishnah in Gittin VII, I, 11 classes the hearing-mute with the deafmute, and the speaking- deaf with the normal; while Maimonides 12 and R. J. Caro 13 class, conversely, the speaking-deaf with the deaf-mute and the hearing-mute with the normal, both thus reversing the Mishnaic definition of Cheresh. Indeed, one is led to conclude, that Maimonides con- 8 Chag. 2b. 8 Ps. xxxviii, 14. 10 Choshen Mishpat Chap. 235. "Wrongly, I believe, for the discrimination shown there against the mute refers only to "nishtatek," one who became dumb through sudden illness, in which case the question of sanity might be mooted, but not to "illem," who is considered a mentally sane being. "Maim. Yad, Mechirah XXIX, 13. "Chosh. Mishp. Chap. 235. Jewish Law and Literature 7 sidered the deduction from the above Psalm-verse conclusive, thus raising mere terminology to the im- portance of law. 14 The net result of all this is, that the attitude of the law becomes more rigorous towards all classes of the mute and the deaf, their sanity being more or less challenged. But of course, the mentality of the deaf or mute, even of the deafmute, is not placed by the Rabbis on the same low level as that of the insane. In many ways the deafmute were regarded legally competent. The Rabbis, then, recognised degrees of mental in- capacity. However, as to the mental alienation proper, they made no rigorous distinction between the feeble-minded and the insane. Maimonides has a distinct reference to monomania in a ruling to the effect that the monomaniac is incompetent even in matters concerning which he is rational. 16 We do how- ever find that the Rabbis attempted to define mental alienation by distinct criteria. These Rabbinic criteria are as follows: 16 "He who takes a solitary stroll by night (exposing himself to ghosts) ; he who spends the night in the cemetery; he who wildly tears his gar- ments ; or he who destroys everything given him." No trouble need be taken to compare these criteria with 14 Cf. his Commentary on Terumoth I, 2 where he says : "In our language, Cheresh means one who does not hear," which suggests that he was influenced by considerations of language, of terminology and definition. Note, however, Yad, Ishuth II, 26, where Maimonides uses the term "illem" for the deafmute; and where, moreover, he says that the speaking-deaf and the hearing-mute are to be regarded as normal human beings. 18 Maim. Yad, Mechirah IX, 9. "Chag. 3b. 8 The Defective in the strict medical tests of our own time ; nor need the rabbinic test of insanity be taken too literally, the Rabbis having had in mind not so much specific criteria as types of action evidencing eccentricity of some sort. 17 The underlying principle, then, is eccentricity, which fully accords with the modern idea of mental aberration. Epileptics are characterised as : "Ittim shafui, ittim shoteh" They are classed with the insane during the fit ; with the normal, during their lucid intervals. 18 Most tersely is the incompetency of these defectives, both deafmute and insane, expressed by the Mishnah in the following statement: "Yesh lahem ma'asseh ve-en lahem machashavah" they are capable of action but not of thought. 19 In the Gemarah, however, not even this concession is made to them, R. Amai saying: 20 "Rov maassehem mekulkalim" "their ac- tions are for the most part inefficient." Leaving out the blind, as requiring little comment, let these general considerations be concluded with a word about the sex-freaks. The rabbis regarded both Tumtum and Androgunos, but especially the latter, as "Biryah bifene 'atzmah," as a distinct creature. 81 Tumtum is a kind of neuter in whom sex has not declared itself, but may at any time do so either in the 17 V. Kesef Mishneh on Yad, Eduth IX, 9: "Ledugma naktinhu." 18 Rosh-Hash. 28a, where the term "chalim" is used for "shafui" lucid, sane ; Maim. Yad, Mechirah XXIX, 5. "Machshirin III, 8; VI, 1; Taharoth VIII, 6. 20 Chulin 26a. "Yevamoth 83a; 99b; Bikkurim IV, 5. Jewish Law and Literature 9 direction of masculinity or femininity; while Andro- gunos, or hermaphrodite, is a bisexual person, possessing for ever the characteristics of both male and female. 22 The Rabbis, commenting on the verse : "male and female created he them," maintain that the first human creature was an Androgunos. 23 This is of some interest in view of the problem in biological evolution, whether the hermaphrodite or the dioecious state is the primitive one. 24 Finally, the sterile of both sexes are recognised by the absence of signs of puberty and, in addition, by a masculine voice in females and feminine voice in males. 25 And now we may proceed to set forth in detail the status of the defective, both legal and religious. By legal status is meant their standing in secular matters, including marriage and divorce; by religious status, the extent of their participation in the religious life of the Jew. Legal Status (a) Chasakah Chazakah is the right of ownership by virtue of undisputed tenure for a definite length of time. The "Yevamoth 83b; Maim. Yad, Ishuth II, 24-25. 23 A variant of this view is that Adam was a "du-partzufin," a kind of twin-creature, male and female grown together back to back, which was afterwards separated by the well- known operation ; but the authorship of these two views is confused in the respective passages. V. Bereshith R. VIII; Vayikra R. XIV; Eruvin 18a; Berachoth 61a. 24 Balfour, Comp. Embryol. Introd. p. 11. 2B Yevamoth 80b ; Maim. Yad, Ishuth II, 6. 10 The Defective in deafmute and the insane are not allowed such pre- sumption of ownership by actual possession. 2 * (b) Zechiyah Gifts The act of the acceptance of a gift constitutes a legal title thereto. . This is called Zechiyah. In this sense, a man may also act as a proxy and receive property for others, the legal title thereto being estab- lished in their favor the moment the property is trans- ferred to him. Here a distinction is made between the insane and the deafmute. The insane can neither make nor receive gifts, nor yet can they accept property for others; whereas the deafmute can accept gifts for themselves, though they cannot make gifts nor receive them for others. A normal person, however, may receive gifts for insane. 27 (c) Inheritance In seeming contradiction to the laws of Zechiyah, are the laws of inheritance. Both insane and deafmute may make and receive bequests. For the principle here involved is entirely different from that under- lying transfer of property. The right of inheritance does not involve a conscious transfer of property requiring legally competent agents; it is an inherent right, 28 working quite automatically; an inheritance, according to rabbinic terminology, "falls" to the heir. Hence the question of sanity is beside the point. The 26 Maim. Yad, To'en XIII, 2; Chosh. Mishp. 149, 18 based on Mishnah B. Bathra III, 3. 27 Maim. Yad, Zechiyah IV, 67; Chosh. Mishp. 243, 14-16, based on Gittin 64b. See also Yad, Mechirah XXIX 1-4. 28 Mishnah B. Bathra 126a; Maim. Yad., Nachaloth VI, 1. Jewish Law and Literature 11 only provision of the law is that in the case of an insane or deafmute heir, the court is to appoint a trustee or guardian to manage the estate. 29 All this, however, applies only to natural heirs, but not to the heirship of husbands, if either party to the marriage is deafmute. In such a case, if the wife is a deafmute, the husband cannot inherit her property, though he be normal ; but if the wife is normal and the husband is a deafmute, he can inherit her property. 30 The reason for this discrimination lies in the fact that the right of the husband to inherit his wife's property is not an inherent right as in the case of blood-relations. The latter inherit by virtue of Pentateuchal law, while husbands are entitled to the estate of their wives only by virtue of a Rabbinic ordinance. 31 The heirship of a husband, then, is in the nature of a deed implied in the marriage act. 32 Hence, in the case of deafmutes, there applies to the heirship of husbands not the law of inheritance but the law of Zechiya. Therefore, if the wife is deafmute, the husband cannot inherit her property, though he be normal, since the deafmute cannot effect a transfer of property ; but if the wife is normal, he can inherit her estate, though he be deaf- mute, since she, as responsible agent, can transfer her property ; and he as deafmute can, in keeping with the 29 Kethuboth 48a; Maim. Yad, Nachaloth X, 5 and 7; ibid., Mechirah XXIX, 3 ; Chosh. Mishp. 290, 1-27. 3 Maim. Yad, Ishuth XXII, 4; ibid., Nachaloth I, 9. 81 Kethuboth 84a; Maim. Yad, Nachaloth I, 8. Note also that the marriage of deafmutes itself is valid only by Rabbinic ordinance, which, however, cannot explain the fact that the deafmute husband of a normal wife is her heir. 32 Note the familiar Rabbinic principles : "Kol dimekadesh ada'ata dirabanan mekadesh." 12 The Defective in law of Zechiyah above set forth, receive property. On these same grounds, the husband cannot be heir to his wife's estate, if either party to the marriage be insane, since the insane can neither make nor receive gifts apart from the fact that the marriage of the insane has barely any standing in the eyes of the law. 83 (d) Sales The difference between the insane and the deaf- mute is most strikingly shown in the matter of the validity of sales. Sales or purchases by the insane, whether in chattel or real estate, are invalid ; while the commercial transactions of the deafmute and the speaking-deaf are valid in respect to movable goods but not in real estate. 34 The deafmute, we are told, buy and sell "biremizah," by sign-language. 35 They should be, however, thoroughly examined as to whether they understand the nature of the deal, 36 which again shows, that the rationality of the deaf and deafmute was questioned in every way. Indeed, this provision of the law is explained as a merciful con- cession, to enable the deafmute to procure a liveli- hood. 37 In this connection, the case of epileptics, too, receives consideration. The point to be ascertained in ssYevamoth 112b, 113a; Maim. Yad, Nachaloth I, 10. "Gittin 59a, 71a; Maim. Yad, Mechirah XXIX, 1-2; Tur Chosh. Mishp. 235, 17 and corresp. Shulchan-Aruch. 35 In the Mishnah Gittin 59a, a distinction is made between "remisah" gestures of the hand and "kefitsah" movements of the lips; and the former is held more reliable than the latter. 88 Gittin 67b, 71a; Maim. Yad, ibid., Examination, however, was necessary in the case of the "illem" too. "Gittin 59a; Maim. Yad, Mechirah XXIX, 1. Jewish Law and Literature 13 reference to their transactions is, whether these took place in their lucid moments or during the epileptic seizure. 88 (e) Honor From a human standpoint the question is most in- teresting whether these defectives have any sense of personal honor and are, hence, entitled to damages for insult or defamation of character. Here again, the deafmute are entitled to damages, while the insane are not. 39 (f ) General Legal Standing The general standing of these defectives before the law, in other respects than above specified, is prac- tically nil. Not being considered responsible agents, they are not liable to damages for assault upon others, while others are liable to such for assault upon them. 40 Neither their claims on others, nor the claims of others on them, are heard ; they are not sworn nor is an oath administered to others on their account. 41 Thus, they are practically without redress in money matters. Nor are they accepted as witnesses ; be it noted, however, that in the case of the deafmute, this is more on account of technical disability than of mental incom- petency; hence, even the "illem," who is otherwise considered mentally sound, is disqualified as a witness, since he cannot give testimony by word of mouth, as asRosh-Hash. 28a ; Maim. Yad, ibid., 5. 39 B. Kama 86b; Maim. Yad, Chovel III, 4; Chosh. Mishp. 300, 37. 40 B. Kama 87a; Maim. Yad, ibid, IV, 20. 41 Shevuoth 38b ; Maim. Yad, To'en V, 9 and 12. 14 The Defective in has already been set forth above. 42 Nor yet can they act as agents for others; but if they so act, the risk belongs not to him who employs them as intermediaries but to him who accepts them as such and entrusts aught to them. 43 (g) Status of the Blind In contradistinction to these defectives, the Blind are given full legal rights, except that they cannot, on obvious grounds, serve as witnesses or as judges ; but a one-eyed man may function as witness though not as judge. 44 Moreover, the blind cannot act as bringers of a Get from foreign parts, since they cannot comply with the technical requirement of de- claring : "Befanay nichtav" It was written and signed "before" me. 46 (h) Marriage and Divorce The principle underlying marriage and divorce between deafmutes or between deafmutes and normal persons is, that such marriages are valid only by Rabbinical ordinance and not by Pentateuchal law. 46 Hence the wife in the case is entitled to neither keep nor Kethubah." Both Marriage and Divorce, whether 42 General Considerations. * 3 B. Bathra 87b; Maim. Yad, Sheluchin II, 2. "Njddah 50b; Maim. Yad, Eduth IX, 12. 48 Gittin 23a, where the general disqualification by the Mishnah is modified by the Gemara to apply only to divorce- bills brought from "Chutz-laaretz." Maim. Yad, Gerushin VII, 19. "Yevamoth 112b; Maim. Yad, Ishuth IV, 9. 47 Yevamoth 113a; Maim, ibid., XI, 4. This seemingly cruel provision is explained as facilitating the marriage of a deaf- mute woman. Jewish Law and Literature 15 she or he be deafmute, take place by Remizah sign- language. 48 But if a deafmute man can write, he must give a Get* 9 Deafmutes, however, must be examined as to whether they understand the nature of the act. 80 The Rabbis, however, have made no provision for the marriage of the feeble-minded and insane. 51 "Lo tikkenu lahen rabbanan nissuin." As to the special divorce regulations applying to the deafmute and the mentally defective, the following is to be noted : If a woman who was normal at the time of her marriage becomes deafmute afterwards, the hus- band has the alternative of either retaining or divorcing her ; but if a man who was normal at the time of his marriage becomes deafmute afterwards, he cannot divorce her. 82 But if a woman who was sane at the time of her marriage becomes afterwards irrational, the husband cannot divorce her. In strict legality, he might divorce her as long as she has sense enough to take care of her Get; but the Rabbis have mercifully provided that he should never put her away, lest she be at the mercy of licentious men. 88 He may, however, marry another woman without being guilty of bigamy. 84 The laws of Yibbum and Chalitsa operate in the 48 Mishna Yevamoth 112a: Gittin 59a; Maim. Yad, Gerushin 88, 17. Gittin 71a. 8 Ibid. 81 Yevamoth 112a: "En adam dar im nachash bichefifah achath no man would take up his abode with a serpent." Maim. Yad, Ishuth IV, 9. "Yevamoth 112b; Maim. Yad, Gerushin II, 17. "Yevamoth 112b, 113b; Maim, ibid., X, 23. "Even-Haezer 119, 6. 16 The Defective in case of these defectives in the following manner : Both deafmute and insane, male or female, can be parties to a levirate marriage, but not to the act of Chalitza.* 6 Hence the curious situation arises that a person who cannot contract an ordinary marriage, because of legal incompetency, can contract a perfectly valid levirate marriage, for the reason that the validity of the levirate marriage is rooted in the previous marriage of the sane brother. From this follows that the wife of an insane or feeble-minded person is subject to neither Chalitza nor Yibbum, 59 since her marriage has no legal standing. The wife of a deafmute, however, is regarded as being in the same case with all other women, since her marriage has some legal standing, and thus she can be a party either to Yibbum or to Chalitza. 61 How far the levirate marriage by defec- tives is valid, is shown by the fact that a deafmute cannot, after contracting a levirate marriage, divorce the wife so wedded, since the divorce by a deafmute man is not potent enough to undo a perfectly valid marriage. 68 If, however, he is normal and his levirate wife is deafmute, he can divorce her. 59 The salient features of the law regulating the marriage of the sexually abnormal are as follows : In the case of sterility, the marriage is valid if contracted with the full knowledge of the defect; but if con- tracted in ignorance concerning the defect, the mar- 55 Yevamoth 112b; Maim. Yad, Yibbum VI, 3 and 6; Even- Haezer 172, 11 and 12. B6 Yeyamoth 96b; Maim, ibid., 8; Even-Haezer, ibid., 16. 67 Maim. ibid., 7. See comment by Maggid M. 58 Yevamoth 112b; Maim, ibid., 3. 69 Maim. ibid., 6. Jewish Law and Literature 17 riage is void. 60 A sterile man or woman is not subject to Yibbum and Chalitza. 6 * A Tumtum may marry and be married, but such a marriage is of dubious validity; 62 while an Androgunos can wed but cannot be wedded. 63 Neither is an Androgunos qualified for Yibbum and Chalitza, while a Tumtum performs the act of Chalitza but cannot contract a levirate marriage. 64 Religious Status The deafmute and the insane have no place what- soever in the religious life. They stand without the pale of Judaism. "They are free from the duties, responsibilities and penalties" prescribed by our re- ligion. 65 Nor are they granted the privileges of religion. They cannot officiate in any religious capacity : (( enam motziin eth harabbim yede cho- votham." M They do not blow the Shofar, 67 nor do they lay an Eruv-techumin. 6s A slight exception is found in the case of Shechita, which is not to be performed by them "lechatechila" but which is none the less kosher if performed under the supervision of Kethuboth lOOb, 102b; cf. ibid 72b and Yevamoth 2b; Maim. Yad, Ishuth XXIII, 1-2; Even-Haezer 44, 4. "Yevamoth 24a, 79b ; Maim. Yad, Yibbum VI, 1 and 8. 82 Bechoroth 42b; Yevamoth 72a; Maim. Yad, Ishuth IV, 11 ; Even-Haezer 44, 5. 63 Yevamoth 81a; Maim. Yad, Issure-Biah I, 15. "Maim. Yad, Yibbum, VI, 2, 4, 8. 5 Rashi Chag. 3b. Rosh-Hash. 29a. 67 Ibid. 88 Eruvin 31b. 18 The Defective in competent persons. This, however, is but a post- factum concession: "bedi-avad"** The religious status of the blind is a matter of some controversy in the Talmud, the opinion of R. Yehudah being oft quoted to the effect that the blind are free from religious duties; 70 but the final decision, regis- tered in the Codes, is that the blind are disqualified only to the extent of their inability to see. Hence a blind man may officiate as Chazan, but he may not read from the scrolls ; 71 because prayers may be recited by heart, while the Law must be read: "Devarim shebichtav i attah reshai leomeram 'al peh" 12 He must even observe Mitzvath Tzitzith, despite the com- mand, "ye shall see them," 73 because others can see the fringes. 7 * In connection with the religious disabilities of the insane and deafmute it is worthy of note that, accord- ing to one authority, 75 a father who has begotten an insane or deafmute child has thereby fulfilled Mitzvath Piryah-Verivyah. One might suppose that the bringing into the world of a religiously disqualified child does not satisfy the requirements of this religious law. In that well-known Midrash which tells how God con- sulted the angels as to whether He should create man, the angelic host ask the Creator: "What are the 69 Chulin 2a. T B. Kama 87a; Kiddushin 31a. "Megillah 24a; Maim. Yad, Tefillah VIII, 12; Orach Chayyim 53, 14. "Gittin 60b; Orach Chayyim, ibid. T3 Num. xv, 39. T *Shabbath 27b; Maim. Yad, Tzitzith III, 7; Orach Chayyim 17, 1. 7 Even-Haezer 1, 6: gloss by Isserles in the name of R, Jewish Law and Literature 19 potentialities of this odd creature?" And God answers, "Tzadikkim righteous men will descend from him." 76 That is to say, the mission of humanity is spiritual, and it is only in the light of the spiritual destiny of mankind that the perpetuation of the race is exalted to a high plane. The Midrash even adds slyly that God revealed to the angels but half the truth, for had He revealed the other half, namely that unrighteous men too would descend from Adam, the Midath Haddin the Attribute of Justice would never have brooked the creation of man. Well, this is Aggadah. But the Halacha on the one hand dis- qualifies the child, and on the other hand declares itself satisfied with the father. Here one may already perceive the difference between the attitude of Halachah and Aggadah, of which more will be said presently. Before passing on to that phase of the subject, just a few words are in place about the disabilities of physically defective priests. These were put to menial work about the Temple, such as cleaning the kindling wood from worms, for which purpose a special cell was set aside called "lishchath ha' etzim."' 1 ' 1 When we read the long list of the physical disqualifications in Lev. xxi, we are strangely impressed with the fact that the least departure from bodily perfection unfitted a man for service at God's altar. The spiritual ministry of the priest was hedged in by exacting physical re- quirements. No less curious is the fact that the Solomon b. Aderet (end of 13th cent.). "Bereshith R. VIII. "Midoth II, 5. 20 The Defective in Hebrew language, though impoverished in many important respects, has preserved in this list as well as in both Tochechoth" 18 so many words that describe unsightly malformations and loathsome diseases. We lack classic Hebrew terms for many of the beautiful sights and sounds of this world for colors, flowers, trees, birds but we do not seem to be wanting in terms that bring before us the seamy side of life, that echo the groans of the sufferers, that reflect the gloom of darkened lives. One is reminded of those old- fashioned books on theology that contained nine chapters on hell and only one chapter on heaven. Uppermost, it seems, in the human mind is the sinister aspect, the sitra achara, of existence. That aspect we are apt to exaggerate beyond all proportion; and, therefore, it becomes the business of the spiritually- minded thinker to reduce our morbid imaginings to their true measure, to turn our face toward the light, to show how in the divine scheme of things, light and shadow sing the same song of everlasting justice and mercy. The Aggadah That song was caught and set to human words by the Aggadah. While the Halacha coolheadedly accepted conditions, and dealt in a practical way with the grim realities of Subnormality, the Aggadah asked searching questions and dealt with the dim idealities of Subnormality. Now behind every question that the human intellect "Lev. xxvi, 16; Deut. xxviii, 20-22, 27-29, 34, 35. Jewish Law and Literature 21 ever asked there was an emotional crisis, a shock. And it behooves us to find out the nature of the shock that led the Aggadists to inquire into the causes of Subnormality, always bearing in mind that while the Halachah confines itself to adjusting the physical order unto itself, the Aggadah tries to adjust the physical order to a higher spiritual order. What, then, was the nature of this shock? On the physical side, it is not to be supposed that the sight of bodily imperfection left the Rabbis of the Aggadah altogether untouched. The Greeks had no monopoly in the high regard for the body beautiful. The Jew, too, appreciated bodily perfection. It would take one too far afield to enumerate all the passages in Bible and Talmud that show admiration for well-favored men and women. One example shall suffice. The Rabbis say that God takes pride in men of tall stature, 79 basing their statement on the verse: "And I have destroyed the Amorites before them, whose height was like the height of cedars and he was strong as the oaks." 80 The Rabbis felt that this verse, though referring to the destruction of those remarkable specimens of stalwart humanity, still reflected the divine pride, as it were, in the tall and vigorous human frame. Nevertheless, while the Jew appreciates physical wholeness, the Jewish Genius is not primarily esthetical ; it is essentially ethical. Hence we are not to expect that the shock which the Aggadists experienced when facing the phenomenon of Sub- Bechoroth 45b. 80 Amos ii, 9. 22 The Defective in normality was an esthetic one, a rude jarring of their esthetic sensibilities ; nor that the causes they sought to learn were of a physical nature. In conformity with the constitution of the Jewish Genius, the shock they experienced was an ethical shock, a painful upheaval of their moral being ; and the causes they searched for, in order to regain their own spiritual equilibrium, were accordingly of an ethical nature. Facing Subnormality, the Aggadists asked: How can such things be in a world presided over by a righteous God? In proof of this, it is to be noted that the general Rabbinic theory of human suffering is that it is caused by moral turpitude. "En yissurim beli avon" no Sin, no Suffering. 81 In regard to Subnormality, however, the Rabbis are still more specific, assigning certain defects to certain definite immoral acts. Lameness, mutism, blindness and deafmutism in children are ascribed to various kinds of incontinence and un- chastity practised by parents during co-habitation. 81 A judge who takes bribe will be stricken with blind- ness; 83 this view is of course based on the literal interpretation of the verse : "For the gift blindeth the wise." 84 Lastly, the Rabbis tell us that malingerers, who sham blindness or other defects in order to excite sympathy and receive undeserved bounty, will yet be stricken before they die with the very affliction they feign. 86 81 Shabbath 55a. See also Berachoth 5a: "im roeh adam. yissurim bairn 'alav yefashpesh bema'assav;" and Gittin 70a: "Sheloshah devarim makchishin kocho shel adam: pachad, derech, avon." 82 Nedarim 20a. 83 Peah 8, 9; cf. Kethuboth 105a. 84 Deut. xvi, 19. 85 Peah, ibid., Kethuboth 68a. Jewish Law and Literature 23 It is thus that the Rabbis tried to trace the moral causes of Subnormality. It is thus that they en- deavored to fit the latter into the divine world-scheme. The defective is more or less guilty of sin, or at best was conceived in the sin of others. It is perhaps for this reason, that the Levitical laws were so scrupulous with regard to the physical wholesomeness of the priesthood. A seeming contradiction to this theory as to the moral causes of Subnormality is to be found in Ex. iv, 11. In this verse God answers Moses' com- plaint about his slight impediment: "Who hath made man's mouth, or who maketh the dumb, or the deaf, or the seeing, or the blind? Have not I the Lord?" According to the literal meaning, this verse refers to the innocent Moses. The philosophy reflected in this verse is that God in His inscrutable wisdom grants or withholds the faculties of the body regardless of the merit of the individual. This, then, would tend to upset the Rabbinic theory. But here again the Rabbis are true to themselves and exhibit their consistency to a striking degree. For this same verse, as explained by the Rabbis, assumes a different meaning, one that tends to support the Rabbinic view of Subnormality. They say 88 that when Pharaoh wanted to have Moses put to death for killing the Egyptian, all his wise men became incapacitated : some of them went blind, some dumb, some deaf, and some lame. When Pharaoh issued the command to seize Moses, the blind could not see, the dumb could not speak, the deaf could not hear, and the lame could not run. Thus Moses "Shir-Hashirim R. VII. 24 The Defective in escaped. Now, say the Rabbis, the verse in question refers to that incident. In other words, it refers not to the innocent Moses but to the guilty Egyptians. Facing the broken tabernacle of the body, the Rabbis recognised in the battered ruins the punishing hand of God. Therefore did the Rabbis prescribe special forms of benediction for those who happen to sight a defective or a physical freak. If the defect is con- genital, the beholder should say : "Blessed art thou, etc., who fashionest thy creatures in strange ways ;" but if accidental, he should say: "Blessed be the righteous judge." 87 Nevertheless the Rabbis readily acknowl- edged that the light of God may shine forth brightly out of some of these broken shrines. Mention was already made of the story of the two dumb scholars who absorbed R. Jehudah's discourses. A further example in point is the familiar figure of the blind R. Shesheth whose extraordinary erudition is emphasized, 88 and whose acumen forms the subject of many a Rabbinical anecdote. 89 Lastly, the Rabbis say that Mephibosheth, son of Saul, of whom the Bible says that he was lame on both his legs, 90 was the teacher of David, by whom he was consulted on all occasions. 91 If after what has been said, further corroboration be needed of the Aggadistic attitude towards Sub- normality, as here set forth, another Rabbinic story "Berachoth 58b. 88 Shevuoth 41b. 89 Berachoth 58a. 9 II Sam. iv, 4. 91 Berachoth 4a. Jewish Law and Literature 25 may be cited. This story makes it plain that the Rabbis were solicitous about bringing the phenomenon of Subnormality into harmony with God's creative plan. The story is that David said to God: "How manifold are thy works, O God, in wisdom hast thou made them all. 92 All that thou hast created in thy world thou hast made well, and wisdom is the best of all ; but Madness which thou hast created how can it benefit the world ?" God answered, "To Madness dost thou object? Wait! thou wilt yet stand in need of it; nay more, thou wilt miss it and pray that I should give it unto thee." Here follows the account of David's coming to the court of Achish, King of Gath, from whence he escapes by feigning insanity. 93 In the Rabbinic version of this Biblical story, David in his extremity prays for the gift of madness, which is granted him for the moment. And the story ends with David's joyful exclamation, "How desirable is Mad- ness ! I will bless the Lord at all times, 94 in times of wisdom and in times of madness !" 95 Insanity part of the moral scheme of God's world-government ! 96 Truly, bold Fancy could ven- ture no farther in bridging the gulf that exists in the human mind between God's wisdom and men's woes ! Our Rabbis, in their optimism, did turn our faces toward the light, interpreting the dark riddle of life in 92 Ps. 104, 24. 93 I Sam. xxi, 13-16. 94 Ps. 44, 2. 95 Shocher-Tov 39; Yalkut II, 131. 96 I feel it incumbent upon me to point out at this juncture that I have not taken into account the belief that insanity is due to "possession" by evil spirits, traces of which belief may 26 The Defective in such a way that men of lesser knowledge and lesser faith may understand it and be comforted. Still more powerfully do the notes of comfort ring forth out of the words of the prophets of Israel. We need not be surprised that the prophets included in their cosmic vision the sad phenomenon of Sub- normality. For these men of God dealt as none other did with the seamy side of life. And though their soul was mainly troubled by the prevalence of moral evil, yet, as superlative incarnations of the Jewish Genius, they did not lose sight of bodily ills altogether. Both moral and physical defects, to their view, are inter- laced in that whimsical underweb which oft conceals from our limited ken the harmony and the beauty of God's world-pattern. Hence it is not at all astonishing that in their Vision of the End they foresaw the dis- appearance not only of Sin but also of Subnormality. And though some passages in which the prophets speak of the blind being made to see and the lame being made straight-limbed are open to figurative interpre- tation, 97 there is one passage in Isaiah 98 lending itself to none other than its primary, its literal construction, which contains the soothing promise: "Then the eyes of the blind will be opened, and the ears of the deaf will be unstopped. Then will the lame leap as an hart and the tongue of the dumb sing !" To sum up : If the Rabbis of the Aggadah have a be found in the Bible, Rabbinic Literature, and particularly in_ the New Testament; nevertheless, I believe I am not mistaken in stating that I have, throughout my presentation, followed the main stream of Jewish thought. 87 Isa. xxix, 18; xxxii, 4. "Ibid., xxxv, 6. 27 philosophy of Subnormality looking towards its cause and origin, the Prophets have an Eschatology of Sub- normality, looking towards its end and final extinction. On the day when the crooked will be made straight and the desert bloom as a rose, both cause and effect of Subnormality will be done away with, both soul and body will be made whole. In the meantime, the Rabbis of the Halachah, being practical men, were right in dealing with a knotty human problem in a practical way. To be sure, the modern sociological investigator, searching for what is today called the social treatment of the Defective, will find in the Halachic treatment of these unfortunates results that are, from his standpoint, almost wholly negative. Of social treatment in the modern sense, the barest traces are to be seen in the appointment by the court of a guardian or trustee more, however, as an adminis- trator of the estate of deafmute or insane than as an embodiment of society's wardenship over their person ; and, further, in the fact that marriage between insane or insane and normal was discountenanced, though not actually prevented. Society was not ready in those days to mete out proper social treatment to its sub- normal or abnormal members, either by way of pre- vention or cure. Men in those days left a great deal to God; and who can say, conscientiously, that even today they do not leave to Him much more than He expects them to ? Especially in view of our own social shortcomings, let us admit that, measured by the standard of those early days, the Rabbis of the Halachah had recourse to such practical measures as fitted into the mold of their own time. Thus our final 28 The Defective in Jewish Law and Literature word about the Defective in Jewish Law and Litera- ture is, that if the Aggadists point the way to deep speculation and the Prophets to sublime inspiration, the Halachists point the way to effective service.