Modern Halakhah For Our Time by Emanuel Rackman KTAV Publishing House, Inc. Hoboken, New Jersey Dedicated to Our Sons משה, ישראל ברוך, מרדכי ויוסף רבה who, with their loved ones—ours too, have blessed their parents with great nachas and forced their father to think harder when studying Talmud with them. Acknowledgments For more than sixty years I have been engaged in the teaching of Jewish law. Whether as a congregational rabbi or in academia I have sought to cultivate interest in the subject and especially to gleam insights, more than rules, that can enrich Jewish life now and forever. Often I was critical of colleagues who failed to do this but I was rewarded when occasionally one student or another would thank me for this very engaging and edifying pursuit. Jewish law was the one force that insured Jewish continuity for millennia. I am committed to the notion that it can still serve that purpose. Not only were democratic ideals a part of it but those very ideals had no more enduring foundation than the religious faith which is the source of Jewish law. I am very grateful to Mr. Bernard Scharfstein, of KTAV Publishing House, Inc., who undertook to publish a sampling of the essays that appeared in learned journals over a long period of time. I hope that, as with an earlier book of mine. One Man's Judaism, it will cause readers to ponder the greatness of a legal system that ought not be permitted to die. It is impossible to list the many to whom I owe thanks for all that I am, all that I have, and all that I may have achieved. But I owe them an apology because their generous effort warranted more spectacular results. For my failures I shall have to account to our Maker. Halakhah: Orthodox Approaches The Analytical Approach Most halakhic authorities regard the Halakhah as a body of rules handed down by the Divine Sovereign to enable the Jew to live according to His will. Some of these rules were transmitted by Moses in writing, while others were transmitted orally by him, together with a methodology for creativity within the revealed rules. Disobedience to some of the rules may be punished by authorities to whom God delegated that power, while for other breaches of the Covenant He reserved unto Himself the power to punish. In such a simplistic conception of the Halakhah, the rationale of the rules is rarely, if ever, an integral part of the rules themselves. Man simply lives to obey these rules—and in obedience lies his salvation. To the extent that creativity is possible, it must be without reference to social or economic conditions, unless such considerations are implicit in the rule. Such instances are very few. The process of Halakhah is discovering what God had said. This is what the law is. Such an analysis must be strictly logical, arrived at deductively or inductively from existing rules and texts, without reference to ideal ends or social facts. Thus, when in modern times the question arose as to whether light produced by an electric current does or does not constitute fire, and consequently whether it falls under the biblical prohibition on making fire on the Sabbath, the approach of many who made reply was purely analytical. The words and the applicable rules were carefully studied on the basis of textual distinction between hot coals and hot metals. The philosophical rationale of the biblical command was not relevant to the issue. In modern jurisprudence this approach is known as "analytical" or "imperative." It distinguishes sharply between the role of the legislator and the role of the jurist. Whereas the legislator may promulgate new rules, the jurist limits his activity to the analysis and exposition of established rules and recognized authorities. It was in line with this juridical approach that Rabbi Moses Feinstein, when asked about bat mitzvah celebrations, discouraged them since there was no source for such celebrations in halakhic 1 1 2 Modern Halakhahfor our Time literature, and thus festive meals marking such occasions could not be deemed se'udot mitzvah (banquets in fulfillment of religious obligations). He even forbade the use of synagogue premises for such ceremonies. 1 In the absence of a text or precedent he had no role to play as a jurist in the halakhic tradition. On the other hand. Rabbi Isaac Nissim, former Chief Rabbi of Israel, did find a precedent for such banquets in a collection of unpublished responsa by a Sephardi scholar, and he consequently permitted them. 1 2 But neither rabbi chose to take into consideration contemporary pressures for the equality of the sexes. Similarly, halakhic experts refused to consider granting equal status to sons and daughters in inheriting estates of their parents. There is no authority whatever for such a move in either biblical or rabbinic literature, especially with regard to the father's assets, although with regard to a mother's assets there was such a minority view in favor of daughters inheriting equally with the sons in both the Babylonian and Palestinian Talmuds. 3 As a result, a determined effort by the late Chief Rabbi Isaac Herzog to legislate equality ended in failure. Those committed to the analytical approach cannot act in the absence of well-accepted texts and authorities in halakhic literature. Because of their total commitment to what the law is, as it has come down from the past, halakhic authorities are especially intransigent with regard to many problems of modern medicine. The old texts simply did not envision the developments that the Halakhah must now face. The question of the permissibility of organ transplants can serve as an example. In certain cases an organ must be removed from the donor before the moment of death as the latter is defined in the Halakhah, that is, before the cessation of respiratory and/or cardiac activity. A talmudic source (Yoma 83a, 85a) dealing with the desecration of sacred days in order to save a person's life states that so long as there is some respiratory or cardiac activity he is presumed capable of being revived, and no effort must be spared to save him. Total, irreversible, brain damage is not a factor; it has been assumed for millennia that a person is alive no matter how dead his brain is. Jewish law, for reasons that are cogent, tolerates no mercy killing. 1. Iggerot Moshe, Pt. Orah Hayyim. 1:104. 2. See Tradition. 14, 2 (1973). 126-7. 3. BB 111a; TJ. BB 8:1,16a. Halakhah: Orthodox Approaches 3 Notwithstanding the arguments of many ethical philosophers today, Judaism is opposed to any acts that would put an end to the misery of conscious patients or the helplessness of the unconscious. However, if a man leaves instructions that, should he suffer total, irreversible, brain damage, his heart or kidneys are to be donated to a patient in need of them, are his wishes to be honored'? Two questions arise here. Is the surgeon permitted to "murder" one person to save the life of another who otherwise would die? May one deem a donor the master of his own body to the extent that he can authorize such "murder" to be committed against his own person? The position of the Halakhah with regard to killing a human being is well-nigh absolute. Whereas the killing of an attacker and the execution of a criminal are permitted, there exist no precedents for killing one person in order to save another; a talmudic maxim (San. 72b) enjoins one from preferring one person's life to another's. The Halakhah does specify priorities when the issue is whose life should be saved when a choice is possible, but the problem of organ transplants was never contemplated; a purely analytical approach can yield no answer, because the old texts never envisioned the new situation. The surgeon would indeed be a "murderer." To return to the question of the donor: may he authorize the gift of his organs, even though consummation of the gift will involve his own death? Suicide is prohibited by the Halakhah. Nevertheless, one may risk one's life to save another, and one is even exhorted to martyr oneself to sanctify God's name; one must also engage in war to protect one's people and one's country. Thus there are precedents that permit what might be regarded as the equivalent of suicide. However, logical analysis demonstrates that these cases differ from that of the donor, who unimpulsively, after long premeditation, decides to be heroic and authorize his own death in order to enable another human being to live with consciousness, a blessing he himself will no longer have. Unless he applies a non-analytical approach to the Halakhah, a rabbi today cannot approve of this heroic decision; and even other approaches do not enable him to add one more instance to the list of situations in which taking one's life is a mitzvah—a noble deed. The texts and authorities that specify the situations in which one may fulfill kiddush ha-Shem by martyrdom do not include dying to save another from such a fate. The late Chief Rabbi Abraham Isaac Kook did suggest—and he 4 Modern Halakhahfor our Time is the sole authority to have done so—that the heroic sacrifice of one's life by submitting to certain death to spare another from a similar fate may be permitted. Often in Jewish history individual Jews did precisely that—they offered themselves to the enemy to save groups or communities or even other individuals whose lives they deemed worthier than their own.