Disability in Jewish Law

Tzvi C. Marx

• Publisher: Routledge
• Year: 2003
• ISBN:
  9781134468409
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Religion

In recent decades, record numbers of Jews are taking a newfound interest in their legal heritage - the Bible and the Talmud, the law codes and the rabbinical responsa literature. In the course of this encounter, they may be interested in how these sources relate to the issue of disability, and the degree to which halakhic attitudes to disability are in harmony with contemporary sensibilities. For example, can the blind or those in wheelchairs serve as prayer leaders? Need the mentally incompetent observe any ritual law? Is institutionalization in a special-education facility where Jewish dietary laws are not observed permitted if it will enhance a child's functioning? And how are we to interpret teachings that seem inconsonant with current sensibilities?
Disability in Jewish Law answers the pressing need for insight into the position of Jewish law with respect to the rights and status of those with physical and mental impairments, and the corresponding duties of the non-disabled.

1
INTRODUCTION

1. Halakha and disability: an overview

Sensitivity to the disabled is a hallmark of contemporary culture in most Western countries. The compassion underlying the current awareness is hardly new to modern society, however, and permeates the monotheistic religions. It is at the heart of the Jewish tradition, and clearly reflected in the Jewish sources. The biblical foundations of the Judaic tradition manifest a sensitive, humane, and dignified attitude to all persons, regardless of individual differences. To a great extent, this attitude is expressed in the precepts, the divine commandments enjoining performance of or abstention from various acts, that constitute the structural framework of the tradition. Yet examination of the halakhic literature also reveals instances of apparent indifference, or even callousness, with respect to the disabled: laws and liturgical passages that appear to evince a dismissive, even derisive attitude toward individuals with disabilities. This inconsistency gives rise to a certain dissonance within the tradition, a dissonance that cannot be ignored by those who value its teachings. It is love and respect for the tradition, and recognition of its moral authority, that motivates this study and its methodology.¹ While an adequate examination of the Jewish approach to disability may entail critique of specific laws, this critique should, I believe, be carried out on the basis of criteria internal to the halakhic culture, and not simply on the basis of contemporary sensibilities. Indeed, the principle that the criteria governing the process of halakhic self-scrutiny ought to be internal is itself internal.²

Although this work is academic in nature, it is my hope that it will serve to enlighten readers, and among them, members of the rabbinate, by alerting them to the possibilities of inclusion on the basis of the classic sources of the law. The legitimacy of responsiveness to the marginalized, though clearly mandated by the tradition, will only come to the fore if those administering the law are sensitized to it. It is also my hope that this encounter will encourage the undertaking of observance by the non-obligated.

My study reads the tradition as conceiving of human existence as worthy in itself in the eyes of God: achievement is irrelevant to human worth. While I do not deny that halakhic culture is inherently precept-oriented, I argue that this orientation does not conflict with the tradition’s broader ideals of compassion, helping, and responsibility. As these ideals are shared with other religions and societies, affirming their significance in the context of disability also highlights the universal elements in the tradition.

Excluding individuals from full participation in religious activities on the basis of physical or mental impairment is offensive to contemporary thinking. But the possible lack of correspondence with contemporary views is not what drives my interest in Jewish law on disability; rather, the source of my unease is the intra-traditional dissonance, the dissonance within the halakhic culture itself. It is the offense against Jewish ethical sensibilities that motivates my desire to clarify the position of the halakha. Biblical culture, as I will argue in the coming chapters, is inclusive, and does not regard the individual as dependent on specific mental or physical endowments. Its heroes, the patriarchs and matriarchs of Israel – Isaac, who is blind; Jacob, who limps; the initially childless matriarchs Sarah, Rebecca and Rachel, and the speech-disabled Moses – are no less esteemed because of disability. When the tradition admonishes us not to place obstacles before the blind, or curse the deaf, it clearly directs us, its adherents, to relate to the impaired among us with consideration. In general, the teaching of compassion for the disadvantaged members of the community – its orphans, widows, strangers or disabled – is a defining parameter of the culture. Overall, then, the aim of this book is to explore an internal ambivalence and to consider whether and how the law can better express the tradition’s ethical mandate with respect to the disabled.

The structure of the book is straightforward: this introductory chapter sets the stage for the involved – and at times painful – analysis that will be presented in the coming chapters. After surveying the incidence, nature, and psycho-social consequences of disability, it presents the methodological parameters that structured my research, then notes a dissonance between the humane outlook of the tradition, on the one hand, and the law’s ambivalence toward the disabled, on the other. The rest of the book examines specific points, paying particular attention to areas in which the law can be interpreted or applied in ways supportive of the concerns, dignity and rights of the disabled. Chapters 2–4 explore the ethical teachings of the tradition with respect to disability, as reflected in the classic Jewish sources, which manifest sensitivity to the disenfranchised. Chapters 5–10 present a detailed examination of particular laws and liturgical passages of relevance to disability, most, though not all, of which, reflect this sensitivity. Chapters 5–7 examine halakhic directives to the able-bodied in their treatment of the disabled, while Chapters 8–10 examine halakhic guidelines for the disabled: precepts observance of which they are charged with or exempted from, and ritual activities from which they are disqualified.³ The closing chapter recapitulates the material and assesses strategies for mitigating the dissonance.

2. Disability

The World Health Organization (WHO) distinguishes three separate, though related, concepts: impairment, disability, and handicap.⁴ “Impairment” denotes disturbances in physical or mental function at the level of the organ, such as blindness, amputation, mental retardation, mutism. “Disability” denotes a restriction of activity within the range considered normal: disturbances at the level of the person, such as difficulty seeing, speaking, grasping, using the lavatory, or inability to use public transport. “Handicap” denotes the meaning of a disability relative to the values of a society, for example, the low status accorded those who are immobile, reflecting society’s negative valuation of this disability. Thus while “disability” is a neutral term, “handicap” is value-laden, signifying the disadvantage resulting from an impairment that limits fulfilment of what are considered normal social and economic roles.

2.1. Incidence

The following figures are intended to illustrate the pervasiveness of disability. Estimates of the percentage of persons who are disabled for the 20 countries of the United Nations Statistics Data Base (DISTAT) range from 0.2 percent (Kenya, Turkey) to 20.9 percent (Austria).⁵ In Israel the disability rate ranges from 9.1 percent to 17.5 percent, similar to that reported for other countries.⁶ There are 16 million persons in the United States with hearing impairment, the most prevalent chronic physical disability.⁷ In 1991, 4.2 million Canadians, constituting 16 percent of the population, had some degree of disability.⁸ Estimates indicate that in Holland in 1991, there were “upwards of 1.5 million people with a serious or very serious physical disability, 11.5 percent of the population,”⁹ including 200,000 working-age persons with major physical impairments;¹⁰ about 4 per thousand had severe mental handicaps, while the estimated proportion of slightly mentally handicapped people was 5.4 per thousand.¹¹ The number of blind persons worldwide is estimated at between 27 and 35 million.¹²

Jewish disability statistics for the United States are difficult to arrive at. From samples, it was estimated in 1988 that 8 percent of Chicago’s Jewish population, or 20,000 people, were disabled.¹³ Fleischman estimates that in 1974 there were 25,000 deaf Jews in the United States.¹⁴

2.2. Import of disability

If we are to appreciate the complexity of the issues at hand, an idea of the experience of disability, as well as its pervasiveness, is important. The Mishna admonishes us not to make judgments about another “unless you have stood in his place.”¹⁵ Moreover, the experience of disability is not unidimensional, but touches on every facet of one’s humanity, both privately and socially.

A basic fact of the experience of disablement is the repugnance it arouses in the non-disabled. Aversion and avoidance are universal. Physical impairment is seen as “an infringement by nature, an intrusion that undercuts one’s status as a bearer of culture.”¹⁶ This revulsion toward disability is, in part, the result of labelling, whereby the disabled are categorized as different and related to as such,¹⁷ but it is not merely a reaction to difference. The “contamination” of the disabled is seen as compromising their very humanness.¹⁸

Adapting to disability means reconstructing every day to cope with its effects – the medical, occupational, practical and social problems it gives rise to, especially the stigma and isolation.¹⁹ The disabled individual must first learn to cope with the symptoms of the disease itself, then confront the broader ramifications of significant disability.²⁰ Though much effort may be invested in this process, disability often brings in its wake depression and frustration, “not as symptoms but as consequences of the disease and its disabling effects.”²¹ In a delicate “balance of opposites” – accepting the disability, while fighting to surmount it,²² the disabled must learn to pace activities and cope with greatly diminished resources.

Discovering new ways of performing everyday tasks, limiting those that cannot be executed, is taxing.²³ A constant reminder that the individual is “less” than he once was, the transfer of mundane tasks to others also points to his incompetence to care for himself, his dependence.²⁴ The individual must consult professional caregivers, thereby relinquishing responsibility for decisions concerning his own illness. He must accept definitions and judgments imposed by others, such as physicians, who possess the knowledge needed to reduce pain, enhance functioning, and verify claims for benefits and services.²⁵ This legitimation process – the extent and origins of disabilities may be questioned in what seems like a bureaucratic gauntlet thrown up before the disabled by the assistance agencies – may generate a disaffection that leaves the disabled individual feeling unimportant and abandoned by the services on which he is dependent.²⁶

The pain and fear of dependence increases with the severity of the disability, and is especially pronounced in those who rely on spouses or children for help with personal care and other practicalities of daily life. Fitting into someone else’s timetable heightens the sense of frustration and entrapment, leading to tension and conflict between caregiver and recipient. Even where help is willingly and selflessly given, the recipient often feels he is a burden on his caregiver.

The cumulative experience of powerlessness takes its toll. Resistance to what would normally be unacceptable is weakened, and the disabled individual may act in ways that run counter to his aspirations and potential.²⁷ He may believe himself to be even more powerless than is actually the case. Further, the guilt and shame experienced by the disabled constitute assaults on their dignity, identity and even their very humanity. This assault on the self may express itself in existential rage – bitterness at the fate that has made the disabled individual into a shadow of what he could have been, expressed in “hostility toward the dominant society . . . one’s own kind, and finally . . . the self ”²⁸ – and situational anger in response to upsetting exchanges with the able-bodied world. This hostility must be contained as the price for “normal” interaction with others. Frequently, such anger is vented only in the home.

Helping professionals, recognizing that the effects of a long-term illness extend to one’s close associates, especially family, speak of family units, and not simply individuals, as “disabled.” The presence of a disabled person in a household may severely dislocate the lives of all its members, resulting in friction and strain, especially when accompanied by a lowered standard of living.²⁹

The disabled individual’s simple physical dependency dominates family life. As noted, feelings of guilt abound: the self-accusatory guilt of the impaired individual, exacerbated by guilt over being a burden, and, at the same time, the family members’ guilt at being intact, taints “the very haven to which most people return for support, protection, and love.”³⁰ Under the stress of disability, the divorce rate is over 50 per cent higher than in the non-disabled population, especially among younger couples, particularly following the onset of disability.³¹

Impairment to the body is paralleled by impairment in social standing. Indeed, it is the response of society to disability that stigmatizes it. “The greatest impediment to a person’s taking full part in his society is not his physical flaws, but rather the tissue of myths, fears, and misunderstandings that society attaches to them.”³² The stigma of disability locates the disable-bodied person on some distant edge of society, like the ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Preface
• Dedication
• 1: Introduction
• 2: Moral Imperatives Governing Disability
• 3: Extra-Halakhic Sources: Biblical Narratives and Rabbinic Aggada
• 4: Guidelines from Charity
• 5: Laws on Relating to the Disabled
• 6: Categories of Disability
• 7: Elemental Dignity
• 8: Observances Related to Liturgy
• 9: Non-Verbal Observances
• 10: Preparatory Observances and Technological Aids
• 11: Conclusion
• Bibliography