The Lost Letter: Rav Soloveitchik on Brain Death

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Rabbi Joseph B. Soloveitchik‘s view on any subject is significant because of his stature as a leading scholar and the influence his students exert on the contemporary Orthodox community. His position on brain death was hotly contested in 1991, and I can now post a long-lost letter on this subject sent by his family. But let us first look at a time line of events.

All agree that for over a decade R. Soloveitchik refused to rule on the issue of brain death, claiming that no one today has the necessary Torah expertise to decide such a complex and crucial question.

R. Soloveitchik grew older and eventually became incapacitated. R. Binyamin Walfish, at the time the Executive Vice President of the RCA, later stated that in late 1983 or early 1984 R. Soloveitchik told him privately that he decided in favor of the brain death criteria. R. Soloveitchik continued teaching for approximately another two years but according to his grandson, R. Mayer Twersky, was no longer answering significant public questions at this time.

At the RCA convention that took place on June 10-13, 1991, the organization voted to approve a health care proxy that accepted brain death criteria. The NY Times (June 15, 1991) reported: “In its continuing effort to apply traditional Jewish teaching to modern life, the largest group of Orthodox rabbis in the world has formally endorsed the donation of organs from brain-dead patients.” The cover letter to this health care proxy noted that R. Walfish testified that R. Soloveitchik had ruled that the RCA should accept the brain death definition.

Two weeks after the RCA convention, R. Aaron Soloveichik and R. Yitzhak Twersky, respectively R. Soloveitchik’s brother and son-in-law, sent a letter to the RCA denying R. Walfish’s claim and insisting that the RCA cease repeating it.

In response, R. Marc Angel, at the time the President of the RCA, announced in The RCA Record (September/October 1991): “In deference to this letter, we have agreed not to cite Rabbi Joseph Soloveitchik’s name in connection with this pesak and to omit it in future printings of the health care proxy.”

I lack the stature to rule on this matter but I wonder whether this situation is sufficiently similar to that of R. Yechezkel Landau’s alleged retraction (link). I can see differences between the cases but I am not sure they change the conclusion.

Documents:

The RCA’s 1991 health care proxy without the cover letter is available on the HODS website (link – PDF), as is the NY Times article about its passing (link – PDF). The RCA’s 2009 revised health care proxy, which intentionally omits a conclusion about brain death, is not available on the HODS website but can be found on the RCA website (link – PDF).

Below is a video conducted by HODS in which R. Binyamin Walfish discusses his conversation with R. Soloveitchik:

And here is the letter sent by R. Soloveitchik’s brother and son-in-law denying R. Walfish’s claim.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link of New Jersey, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Board of Jewish Action magazine and the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

107 comments

  1. This letter seems to fall squarely within “lo ra’inu aino ra’aya”. I don’t see how this substantially advances things.

  2. A letter by two luminaries like R. Aaron Soloveitchik and R. Yizhak Twersky must, of course, be taken very seriously. Nonetheless, it is important to look carefully at what they actually wrote and, equally important, what they did not write. (Remember, these are two great men who were very articulate and careful in their choice of words.) They do not write that they ever specifically spoke to the Rav about this issue; all they say is that he “never issued a halachik decision on the issue of brain death.” It is very possible that that R. Walfish’s conversation with the Rav went exactly as R. Walfish testifies to in his interview, and that Rav Aaron and Prof. Twersky simply believe that his statements in that conversation do not amount to the “issu[ance of] a halachic decision.” Unfortunately, with the passing of these three gedolim, we will never know exactly what they meant or what was happening, from the Rav’s perspective, in his conversation with R. Walfish.

  3. Glatt some questions

    It is not impossible that Rabbi Soloveitchik told Rabbi Walfish that he personally believes that brain stem death is halachic death (based on the research that Rabbi Tendler had conducted), but that he was still not willing to render a halachic psak stating this, and he did not want to make his personal beliefs public.

    Therefore, I do not see the two statements necessarily contradicting each other.

  4. Much like R. Shmuel Landau’s responsa.

    And note that they wrote this specifically in opposition to R. Walfish and that the RCA accepted it.

  5. That the RCA accepted it says much about politics and little about truth (one way or the other). And, regarding your claim that perhaps the RAv held that brain death was halachic death but didn’t want to make that known, of course it’s possible, but what reason to we have to think that.

  6. Glatt some questions

    And, regarding your claim that perhaps the RAv held that brain death was halachic death but didn’t want to make that known, of course it’s possible, but what reason to we have to think that.
    ———————–
    Because the Rav was always very careful about rendering psak for everyone, even though he spoke to individuals about halachic matters all the time.

  7. Gil.

    1. I don’t see how this is like R. Landau’s case at all. In r. Landau’s case he gave a clear psak and after his death someone said he retracted it and someone said he didn’t. Here, there is a report on a conversation some had with the Rav and others making a clear statement about the lack of a “halachic ruling” but being unclear, at best, about what was said in that conversation (probably because they weren’t parties to it and had no knowledge about what was said). At most, they said that whatever the Rav told r. Walfish, it was not a halachic ruling. Okay, that’s important, but it doesn’t negate what R. Walfish has testified to. How debates about retractions fits in is beyond me. And note, and this is important. R. Walfish did not first speak about this conversation after the Rav’s death. He acted on it promptly in a letter to R. Silver and what the RCA report should have done in investigating this is asked to look into R. Silver’s records to see if they could shed some light on this. But people who didn’t even bother to speak to R. Walfish couldn’t, of course, be expected to do a competent investigation of this important factual issue.

    2. “And note that they wrote this specifically in opposition to R. Walfish and that the RCA accepted it.” Not true; R. Walfish’s name is not mentioned in their letter. Rather, it appears they wrote it in response to the RCA’s cover letter which you have not posted so we cannot see exactly what it sys and what they were responding to. Yet again we’re dealing with a lack of many pieces of relevant evidence.

  8. 1. I see the comparison in that a well-established position has a chazakah and is then contradicted by the testimony of a single person. Yes, there a differences. I leave it to people greater than I to decide on this.

    2. Don’t lawyer this. It is clear as day that they were responding to the RCA, which based itself on the testimony of its Executive Director. R. Ahron and Prof. Twersky were no fools.

    I would post the cover letter if I had it. If you can find it I will be happy to post it. Until then, I am happy to post this historic document.

  9. In regard to the cover letter (and any other relevant documents), has this been formally requested from the RCA or Rabbi Angel?

    I would have thought the RCA maintains an archive that would include documents of such importance.

  10. It’s a curious thing to try to prove a negative.

  11. Rabbi Student,

    Thank you for pointing out that our site was missing the current RCA Health Care Proxy. It, and the letter above, now appears on our Documents page.

    If you know of any other documents, either for or against brain death that do not appear on our site, please let me know.

    Robby Berman

  12. Glatt some questions

    Kudos to Robby Berman and HODS, for once again showing that it is willing to present evidence from both sides of the brain stem death debate.

  13. >Much like R. Shmuel Landau’s responsa.

    Its not the same at all. R’ Shmuel knew that R’ Mordechai Banet
    ,who claimed the Nodah BeYehuda retracted his psak, was lying and more so, was cynicly using intelectual bully-tactics to get his POV to win – dispariging whole communitees of Jews who considered sturgeon kosher.

    I see no evidence to suggest that R’ Wallfish is of the same low ethical level as R’ Banet.

  14. At time 34 sec He said “the gemmarahs definition was cessation of breathing was the definition of death.”
    Then on what basis would the Rav accept the brain stem definition profferd by Rabbi Tendler? Sounds like a contradiction. It would seem unlikely that the Rav felt that the gemmara defines death one way , yet we can redefine it.

  15. “Don’t lawyer this.” You can use “lawyer” any way you like, but people like me (and i’m sure plenty others who comment) happen to have some expertise and experience in examining and analyzing evidence and investigating facts; matters that the authors of the RCA report were, unfortunately, not able to do in a manner that was called for in such an important issue. You clearly don’t know if the letter mentioned R. Walfish. I don’t know either. The difference is that you jump to a conclusion and when someone points out the jump you get snippy about “lawyering.”

    “I am happy to post this historic document.” I’m happy you posted it too; it adds an important element to the discussion. But it doesn’t end the discussion by any means no matter what the greatness of the signatories of the letter was, and I am sure that greatness is not disputed by anyone reading your blog; certainly not by me.

  16. Remember too that iiuc r’ybs was known to use “we recommend” or “we don’t” rather than psak (e.g. wtg)
    KT

  17. “Don’t lawyer this.”

    A letter signed by a lawyer and a Phd from Harvard would have been written very precisely-as is it simply states the obvious the Rav never made a formal psak in this matter-if one is consistent and follows that approach one can ignore most of nefesh harav- But of course, one can’t- it did not require a formal psak for the Rav to state his viewpoint.

  18. Just ask yourselves why did R. Ahron and Prof. Twersky send this letter. What were they thinking, given the timeline, and what did they accomplish? The parallels to the Noda Bi-Yehudah case seems compelling to me.

  19. Rabbi Avraham Walfish

    Several participants on this thread have pointed out that there is no necessary contradiction between the assertion by R. Aharon Soloveichik and R. Yitzhak Twersky that the Rav never issued a halakhic ruling and my father’s (R. Binyamin Walfish) testimony that the Rav had privately affirmed his reliance on R. Tendler’s acceptance of brain-stem death. However, it bears noting that the statement by the Soloveichik family members goes beyond denying that the Rav issued a pesak – they claim that the statement is “totally unfounded and contrary to fact”. With all due respect to these great rabbinic figures, this assertion goes far beyond what they could possibly have known, or indeed what they claim to have known. It is arguable that my father may perhaps have overstated the Rav’s position, presenting “halakha” as “halakha lema’aseh” – although given my father’s enormous deference to the Rav and his sensitivity to the nuances of public statements, I strongly doubt that this is the case. However, even were this to have been the case, this could hardly be characterized as “totally unfounded and contrary to fact”. I submit that the inflated rhetoric of this assertion, which these rabbis were in no position to verify, casts serious doubt on its reliability.

  20. “Just ask yourselves why did R. Ahron and Prof. Twersky send this letter. What were they thinking, given the timeline, and what did they accomplish?”

    Good questions but unfortunately, with the passing of the writers, we can only speculate on the answers. My speculation would begin (not end, but begin) by thinking that they probably wanted to respond to and refute the RCA cover letter. And then, I would need to see that letter to take this speculation to step two. Without that letter, giving answers to Gil’s difficult questions becomes nearly impossible. And thus we are left with the words of the letter and an analysis of what they mean. And as I, and others, have argued (without, in my view, significant objection), the words of the letter do not necessarily refute anything R. Walfish said in the video.

  21. I agree with R. Avi Walfish that this boils down to a disagreement between his father and the Rav’s brother and son-in-law.

  22. Lawrence Kaplan

    With all respect to R. Avi Walfish, I do not see where his view on this matter carries any special weight. Again, as my brother and others have pointed out, the letter refers specifically to “the assertion in the RCA statement as being totally unfounded and contrary to fact.” Until we have that “RCA statemnt” it is premature to claim that the letter contradicts anything Rabbi Benjamin Walfish said.

  23. R. Ahron’s article on brain death(journal of halaha and contemporary society, late ’80’s) may shed light on this letter. He was vehemently opposed and his language was quite strong. It may also be helpful to analyze R Twersky’s representation of the Rav in different contexts. Perhaps Rav/Professor L. Kaplan can shed light on this issue.

  24. >>I agree with R. Avi Walfish that this boils down to a disagreement between his father and the Rav’s brother and son-in-law.

    And when only one side of a(n apparent) disagreement was party to the conversation in question, it’s really not much of a disagreement.

  25. MDJ: Which is exactly the situation of R. Shmuel Landau.

    Noam: The letter was clearly written by Prof. Twersky. You can tell by how he spelled “Rov” and “halakhic”.

  26. Through my legal eyes, I agree, there is no inconsistency between the letter of RAS and RYT, and R’ Walfish’s testimony.

    I would also like to see the original RCA cover letter that RAS and RYT sought, successfully, to be corrected.

    When the Agudath Israel Halachic Living Will was being drafted, I was part of a loose, ad hoc circle of lawyers who were asked to comment on the original draft. I was sometimes counseling nursing homes on health care issues in those days, in the 80s. Before I sent in my comments, I made an appointment to see RAS to discuss some of the issues I had. RAS was very strongly against R’ Tendler’s position on brain death. That’s why the second sentence in the letter doesn’t surprise me: “The assertion in the R.C.A. statement is totally unfounded and contrary to fact.” That’s totally RAS.

    And RAS was right. The second sentence modifies the first sentence. The Rav “never issued a halakic decision on the question of brain death.” That means the Rav never issued a formal PUBLIC written or oral decision. The private conversation with R’ Walfish does not fit that category.

    Of course, R’ Walfish’s account is accurate; its even somewhat awkward to say that, and somehow allow for a credible implication otherwise. Nevertheless, it appears the Rav chose to keep his opinion private and discrete. My own musing is that the Rav may have been concerned, as some other rabbis continue to be, including Rav Gedalia Schwartz, that physicians, armed with the Rav’s public statement, would too liberally declare brain death where it doesn’t exist.

    The solution lies with Rav Moshe Sternbuch’s written p’sak about heroic suicide. People can declare in a written proxy that upon a diagnosis of brain death, their organs can be removed and donated. Even if you believe in cardio-respiratory death only, you can still halachically commit to this type of heroic suicide.

  27. Gil,
    It is not exactly the same as the case of the Noda Biyehuda. In that case, the person claiming the retraction had a very dubious story — a misdirected letter that has been lost and which was not taken into account in reprintings of the NB’s teshuvos that were done during his lifetime. R. S. Landau was calling his interlocutor a liar, as evidenced by his (rhetorical) request to see the letter.
    R. Walfish testimony, however, is prima facie believable. Furthermore, by claiming an analogy, you are saying that RAS and R. Twerski were calling R. Walfish a liar, and, by extension, you are implying the same, or at least seriously considering the possibility. IF you are not, then you have to say that RAS and RYT were _simply_ reporting that they had never heard such a thing from the Rav. A much weaker statement, and one not at all like the case of the NB. OF course, in that case, we are back to my earlier claim that when only one person was there, its not much of a disagreement.

  28. MDJ: Given the context, I cannot understand RAS’ and Prof Twersky’s letter in any way other than saying that R. Walfish was wrong. Maybe he misunderstood Rav Soloveitchik or made some sort of mistake. But it seems clear as day that they were directly contradicting his claim. That is why I gave the timeline.

  29. Reb Gil – I just watched R’ Walfish’s video account. Which part of his testimony is mistaken? It seems clear to me. And logical. I believe brain stem death equals halachic death because I’m relying on R’ Moshe Tendler, who knows both the science and the Torah, and worked alongside his father-in-law, Rav Moshe Feinstein. How would you cross-examine R’ Walfish? How would you attempt to cast doubt on his account of conferring the Rav on this subject? His account seems so clear.

    And I think that great weight has to be given the critical words in the RAS/RYT letter: “never issued a halakic decision on the question of brain death.” It seems to me RAS/RYT were clearly trying to make a distinction between the formal issuance of a halakic decision, and a private rabbi-to-rabbi conversation.

  30. I am also a lawyer and former litigator (in Canada). To me, Rabbi Walfish’s statement in a court of law would be hearsay evidence and prove highly problematic. In Canada, traditionally there were exceptions at common law and if the hearsay evidence met those exceptions, then was accepted into evidence. However, the Supreme Court of Canada has developed a new set of criteria that is more “context based”. To me, and not being knowledgeable of US rules and principles of evidence, I don’t know whether Rabbi Walfish’s lawyer would be able to get his statements into evidence. Further, the weight given to hearsay evidence is certainly much less, and certainly when up against a written piece of evidence like this letter. From a legal point of view, this is quite an interesting scenario.

  31. Even if you believe in cardio-respiratory death only, you can still halachically commit to this type of heroic suicide.
    ============================================
    And what is HKB”H’s preference in this situation? Is he indifferent, would he say Yasher Koach or why didn’t you give yourself the extra time of life or why did you ask others to murder you?
    KT

  32. For sure, its hearsay in court. Unsworn statement being used to prove the truth of the matter asserted. And the Rav is deceased. But there is no hearsay rule in either beis din, or a halachic discussion. That its hearsay, in either beis din or discussion, goes to the weight, but not the admissibility.

  33. Gil,
    I agree that they are saying that. And given that they were not there, and that R. Walfish had many dealings with the Rav and was thus in a position to interpret their interactions, I don’t see what their letter really adds. They are not in a position to make the claims they did, great talmidei chachamim and close to the rav as they were. If, as R. Araujo says, R. Walfish’s testimony is of questionable admissibility in court(not that I think that matters in the current context), there wouldn’t even need to be a hearing about admitting this letter. It would be deemed clearly irrelevant to a trial.

  34. “And what is HKB”H’s preference in this situation? Is he indifferent, would he say Yasher Koach or why didn’t you give yourself the extra time of life or why did you ask others to murder you?
    KT”

    Rav Sternbuch answers these questions in his p’sak, contributed by Reb Shlomo Spira somewhere in the Hirhurim brain death forum, which went longer than a long day at Wimbledon before they came out with tiebreakers. The p’sak gave several examples in our mesorah where heroic suicide was permissible.

  35. Actually, in court, where a statute is ambiguous, the court will examine the legislative history. That can mean the Governor’s bill jacket, containing critical documents; legislative committee reports; letters from interested parties, e.g., Bar associations, medical societies, trade groups, etc.

    Since we are seeking a legal or halachic rule here, where the record is ambiguous, both the letter, and R’ Walfish’s testimony, would be “admissible.”

  36. Elliott, Gil doesn’t want us to “lawyer” this. Of course, I assume that in a halachic discussion, he wouldn’t want talmedei chachamin to “Talmud” that discussion.

  37. Sorry guys, it’s not hearsay because you wouldn’t be putting it into evidence for the truth of the statement; i.e., whether brain death is halachic death. Rather, R. Walfish would be testifying on the issue of what the Rav said, and as to that, since he heard the words, his testimony is diurect evidence and not hearsay. Not that I think the question of hearsay is particularly relevant to this discussion, but if it is, in the U.S. it is CLEARLY not hearsay as to what the Rav’s position was. Clearly.

  38. Good one there, Joseph! I laughed out loud. I’m so used to being the victim of slurs, that it skipped past me. I once loudly marched out of a shul, on Shabbos, during the “drasha”, when the rabbi made a lawyer “joke”.

    Just always, remember, gentlemen, that when the Jewish world was in disarray, and children were murdering themselves from sex abuse, it took a few lawyers to grab hold of the situation and bring some solutions and stability to the situation.

  39. Jewish Law and Time of Death
    JAMA, July 14, 1978–Vol 240, No.2

    To the Editor. The article dealing with brain death (238:1651, 1977)contains a serious misinterpretation of Jewish law pertaining to establishment of the time of death. The statement that “absent heartbeat or pulse was not considered a significant factor in ascertaining death in any early religious sources” is a manifest error In fact, the source to which the reader is directed by the footnote, Babylonian Talmud Tractate Yoma 85A,
    serves to establish precisely the opposite position. Jewish law recognizes the presence of any vital function, including heart action, as indicative of at least residual life. Termination of such life by means of “pulling the plug” or otherwise constitutes an act of homicide.

    Moreover, a sharp distinction must be drawn between partial and total destruction of the brain. The authors state that the Harvard criteria signify that “when the criteria have been fulfilled, there is widespread destruction of the brain” and that “time must often elapse before morphologic evidence of cellular destruction can be. detected.” This cannot be equated at all with the state of decapitation.

    Jewish law cannot be cited in support of brain death legislation presently before the legislatures of various states. Jewish law cannot condone the removal of life support systems from any patient in whom any vital sign is present.

    RABBI AARON SOLOVEICHIK. Brisk Rabbinical College
    Skokie, Ill.

    In Reply. My learned colleague, Rabbi Soloveichik, did not do his homework. The sources we quoted and conclusions reached in our article a on brain death are indeed in accurate conformity with Jewish law. Reference 30 (Talmud Tractate Yoma 85A) in our article establishes beyond doubt that cessation of independent respiration, in the presence of other clinical signs of death, is the sole criterion for death. In the reference cited the Talmud ordains the cessation of all life-saving activities on determination that a person trapped in a cave-in is no longer breathing. The Talmud (Yoma 85A) states, “As soon as his nose is uncovered no further examination [of the heart] , need be made for it is written in the Bible (Genesis 7): ‘all living things who have the breath of life in their nostrils.'” The conclusion is obvious to all unbiased students of Biblical law: the presence
    or absence of heartbeat under the clinical conditions cited in our article is indeed without ethical import.

    In reference 31 (Babylonian Talmud Tractate Chullin 21A and Mishnah Oholoth 1:6) we cited two unchallenged sources that refute the questioner’s unsupported accusation that our article “contains a serious misrepresentation of Jewish law.” The concept that total cessation of brain function should be considered physiological decapitation is indeed innovative as it is accurate. These two talmudic sources also reaffirm that
    residual signs of life, including heartbeat, are of no ethical import after the integrative function of the nervous system (physiological, not cognitive) has been destroyed.

    The interface of ethics or religion and medical practice is a treacherous area because it demands dual expertise to traverse it safely. In the issue at hand, a mastery of the fundamentals of physiology is necessary for the proper elucidation of the talmudic references. It is therefore understandable that Rabbi Soloveichik may be confused. What is not understandable is the disregard of information available to him.

    RABBI MOSES D. TENDLER, PHD Rabbi Isaac Elchaman Theological Seminary
    Yeshiva University New York

  40. The p’sak gave several examples in our mesorah where heroic suicide was permissible.
    —————————–
    permissible or recommended?
    KT

  41. Even praiseworthy. Two men confronted by a bandit, and the Jew offers his life in the place of the talmid chocham. Also, the shamash to the Belzer Rebbe offerring his life, during the Holocaust, in place of the Rebbe.

  42. The title of this post is completely misleading.

  43. Joseph Kaplan,

    I believe you are correct about that. The issue with hearsay evidence is twofold: 1) purpose is for truthfulness of statement; and 2)no ability to cross-examine on it. This is stated in R v. Starr, the latest Supreme Court of Canada decision on this particular evidentiary issue. R. Walfish would be providing direct oral evidence, since he didn’t hear it from anybody other than RYBS.

  44. Lawrence Kaplan – I see in your comment on the postthumous retraction post that you claim that Maadanei Eretz was “censored.” I’d like to call you on that. Can you provide one such instance, with page references? (I quickly looked at the 2008 Maadanei Eretz, and Rav Kook is referred to multiple times as Hagaon Moharai Kook, and his heter mechira is also referred to positively…)

  45. I don’t see what the controversy is about. I mean, I do, but I think it is being deliberately blown out of proportion by those with clear agendas (on both sides).

    Here we have a case in which a recognized Torah giant had a private conversation, practically on his deathbed, with a student. The student asked him (either with an agenda or out of pure curiosity) what his Rebbi thought on a matter that the latter had heretofore intentionally not ruled upon so as NOT to create controversy and NOT to give weight to either side of a dispute he felt nobody (including himself) was competent to rule upon. Said Torah giant apparently told his student that he thought the logic of one side was sound and/or told his student that he thought that side was 100% correct LeHalachah.

    But unless he explicitly told R’ Walfish to widely disseminate his decision as a Psak, and wrote a letter (or signed a letter) or even made a phone call or held a private meeting to verify this as his opinion, we cannot assume he intended to render a Psak of this nature. I personally think it should not even be open to discussion whether or not the RCA should ever have included that statement in its proxy.

    On the other hand, whether or not the use of brainstem death should be accepted as the Halachic definition of death does not depend upon what the Rav or anyone in 1984 said or didn’t say or intended to say or didn’t intend to say. Yes, for the sake of the Halachic Organ Donor Society and the RCA it might be very valuable to point to the Rav and say that he backed their conclusions. But they can’t. So they shouldn’t have tried to.

    As far as I’m concerned, the Halachic process in this matter is still ongoing, as it is in many modern day issues. The fact that a machine can keep a person breathing when the body is itself unable to do so, might perhaps not be what the Gemara had in mind when it said that breathing was the criterion. Or it might be that, due to the far fetched possibility that someone, with the right medical technology heretofore not invented, might start regaining brain function so long has he has not lost too much oxygen to it and his other organs, Halachah needs to maintain the literal definition of life as set by the Gemara, which is breathing, either with or without the aid of a machine.

    I think the Rav was right to say that nobody then – and probably still today – could legitimately claim to be competent enough to rule on this. No matter what conclusion is reached in the more complicated cases there will always be some doubt as to whether it was the correct one.

  46. Elliot Pasik,

    Very interesting (and a very interesting solution to this whole debate). I have long felt that heroic suicide should be muttar (can the hero at the end of the Tale of Two Cities possibly be a sinner? — hard to imagine), but I always thought it was more in the realm of aggada and could never “officially” be sanctioned by rabbanim (i.e., if someone thinks of it on his own and does it, it’s holy, but we can’t officially permit it), but now it seems like you have found a halachic source.

    Very interesting.

  47. Can we just stop beating around the bush and say clearly what the family has attempted to say in a roundabout manner – the Rav was in no state in 1984 to paskin this shayla, regardless of what he told R Walfish. It was not “The Rav” who made those statements to R Walfish, regardless of what was said.

  48. R’EP,
    and what of who says his blood is redder? Are the priority catregories (e.g. in Horiyot) a floor not a ceiling (i.e. you can make your own judgement)? I’m not trying to give you a hard time, I just struggle with these type of value judgements and where it seems one has the right to be smarter/more ethical than the halacha (on a “lower level” an upcoming audioroundup will review R’ Willig on inheritance – why we “circumvent” the Torah’s express wishes on inheritance priorities)
    KT

  49. R’Baruch,
    AIUI this is heroic suicide through a third party – IIUC not so pashut for the third party (sounds at least somewhat like assisted suicide)
    KT

  50. I found it. The below was posted in the comments section by, Reb Shlomo Spira, on Brain Death Symposium VI, on Feb. 13, 2011:

    The second part of R. Moshe Sternbuch’s 5769 responsum in Chelek Chamishi (beginning on p. 589) addresses the 2008 brain death legislation that was passed by Knesset. I will translate this second portion of the responsum, simply in order to be concise at this particular moment:

    “Behold, recently the government here in the land of Israel legislated a statute that a human is called dead when his brain stem ceases to function, and then one may harvest organs. This is against the opinion of all the Gedolei Haposkim who agreed that since the the heart still functions when it is transplanted, then he [the donor] is considered alive, and he who harvests his organs is killing a soul. And who knows if we sufficiently protested against this legislation? And the truth is that this legislation is inherently mistaken even according to their [i.e. the legislators’] opinion, since even if the brain stem does not function, still a part of the brain called the “hypothalamus” functions, which is a portion of the brain that – thanks to the miracles of HaKadosh Barukh Hu – functions to maintain body temperature, and this is a sign that the body is still alive. And see at length in the book Minchat Shelomoh by the Ga’on R. Shlomo Zalman Auerbach, Vol. 2, ch. 86, who writes that even after the brain and heart cease to function, still it is possible that the hypothalamus lives, and if the patient will be connected to the ventilator, he will be able to continue and function many days. See there. May Hashem have mercy that we have reached this stage that we cannot live in the land, for we are in the hands of the [well-meaning] physicians who determine death even when [the patients] still live for a few more moments, and in any event we require protection so that we can be saved from the physicians’ [mistake].

    “And know you, that one cannot say that even though we have explained at length that that when he is brain dead his [Torah] law is that he is alive, still he is like a treifah. See Rambam Hilkhot Rotze’ah 2:38 and Chazon Ish Yoreh De’ah 5:3. And the opinion of the Me’iri, Sanhedrin 72a, and Minchat Chinukh, no. 296, is that if [enemies] say “give us one of you, and if not we will kill you all”, and among them [the victims] is a treifah, it is permitted to surrender the treifah. And seemingly from their words [i.e. the words of Meiri and Minchat Chinukh] it is likewise permissible to kill a treifah in order to save a healthy patient. And so it should be permitted to harvest his heart [from the BSD patient, who is like a treifah] in order to transplant it in someone to live chayei olam [indefinite life]. However, first of all, some Gedolei Ha’acharonim dispute this. See Noda Bi’yehudah Maharura Tinyana Choshen Mishpat no. 59, who holds as obvious that even though one is not liable to capital punishment for killing a treifah, nevertheless it is forbidden to kill a treifah in order to save a healthy patient. And some Gedolei Ha’acharonim agree with him [the Nodah Bi’yehudah]. Also, since even ancillary prohibitions of bloodshed are yehareg vi’al ya’avor, behold this [act of killing a treifah] is no less than an ancillary prohibition, and so there is no permission to kill him for the sake of saving a life. And see further in our words [in Teshuvot Vihanhagot] Vol. 1, ch. 858, that even if there is no law of yehareg vi’al ya’avor in killing a treifah, nevertheless if he was not forced [by outside human gangsters imposing under force majeure] to kill the treifah, but rather he himself voluntarily healed himself by murdering the treifah, this is forbidden, because the treifah is not obligated to surrender his life in order to save the life of another person. For behold the opinion of the Radbaz is that even in his limbs where there is no piku’ach nefesh, one is not obligated to surrender them in order to save a friend’s life. And some say even one’s money one is not obligated to give [to save another person’s life] except because he [the patient who is saved] will be able to repay afterward. And in any event, it appears that everyone agrees that a treifah is not obligated to surrender his life. And see also there [in Teshuvot Vihanhagot I, no. 858] what I wrote that even those who permit killing the fetus to save the mother even without the reasoning of rodef, still agree that a treifah is superior [than a fetus] because he [the treifah] is called “adam”. And see also the Or Gadol [first chapter] who writes that even according to the Minchat Chinukh it is only permitted [to surrender the treifah to save the others] when the endangered person himself surrenders the treifah to save his own life, but not when an external person like a physician [sacrifices the treifah to save the other person] and so on. And see also in our words [in Teshuvot Vihanhagot] Volume 4, ch. 323m where I wrote that it seems clear that everyone agrees that it is forbidden to kill a treifah in order to save the healthy patient. And the Meiri only permitted surrendering [the treifah to an outside oppressor], but not to actively kill [the treifah] with one’s hands. And see Minchat Shelomoh Vol. 2, ch. 86, of the Ga’on R. Shlomo Zalman Auerbach, who concluded that it is unthinkable that a patient may heal himself by murdering a treifah, and that which the Minchat Chinukh permitted to surrender the treifah, when they [the outside gangsters] say “give us one of you and if not we will kill you all”, and one of them is a treifah, that’s only because in any event the treifah will die [if the oppressors capture the whole group], and see further there what he wrote about this.

    “But still this requires clarification, what will be the law if a person reveals his view explicitly, that if he should chas vichalilah experience brain death, that he announces in advance that he is prepared to give his heart in order to save the life of another patient, since his life [as a brain dead patient] has no more quality, and also his life is only for a small amount of time, therefore he is prepared to surrender his life in order to save someone else who will survive many years. The foundation of the question is whether even though it is forbidden to kill a treifah in order to save a healthy patient, nevertheless if the treifah himself volunteers to surrender himself to death in order to save another whole life, it is permissible to kill him [the treifah], since rescuing the life of his fellow for chayei olam [indefinite life] is preferable to his life which is only chayei sha’ah [transitory life], it [should be] permissible for him surrender his life in order to rescue his friend, even though he [the treifah] is not obligated to do so, and therefore it is forbidden to save the healthy patient at the expense of the treifah against the wishes of the treifah. But if he [the treifah] volunteers, it [should be] permissible to kill him. For since he [the treifah] is not considered a “nefesh”, even though he is included in the prohibition of murder, still one who kills him is exempt [from capital punishment by Sanhedrin], and there is no theft here of his life or limb, since he [the treifah] wants it, and so the interdiction against killing him in order to save the healthy patient [should be] permitted. And therefore it is permitted for a patient to say to a physician – especially a Noahide physician – “since in any event my life [if I will experience brain death in the future] is so meager in quantity and quality, I surrender my life to so-and-so.” And this matter requires analysis. And see the Minchat Shelomoh there [Vol. 2, ch. 86], that his opinion is that even if the treifah agrees [in advance] to surrender his life in order to save his friend, this is forbidden, since he [the brain dead patient] is not the owner of his own life. And see there further what he [R. Shlomo Zalman Auerbach] wrote as an additional reason to prohibit this.

    “And in particular there is reason to analyze, if the patient wants to surrender his heart to save a talmid chakham, for it appears in Sefer Chassidim (ch. 698) that an enemy who seeks to kill one of two individuals – one of whom is normal and the other of whom is a talmid chakham – it is a mitzvah for the normal person to say [to the terrorists] “kill me instead”, and likewise we find Rabbi Reuven Itztrobili asks that they [the enemy] should kill him and not Rabbi Akiva. And in the Migdal Oz of the Ya’avetz [R. Jacob Emden], he writes based on this Sefer Chassidim, that if one knows clearly that one’s friend is a greater talmid chakham and tzaddik, then he is permitted to surrender himself to be killed in order to save his friend [who is superior in scholarship and righteousness.] And they relate regarding the saintly Belzer Rebbe, zekher tzaddik vikadosh liverakhah, that when the Nazis – may their name be blotted – searched for him, the Gabbai endangered himself and said that he was the Rebbe.

    “However, there is room to distinguish [our case of brain death from what the Sefer Chassidim discusses], because [perhaps] only the person himself is allowed to endanger his own life in order to rescue a talmid chakham, because since here the prohibition is one of suicide, here we can say it is not [halakhically treated as] suicide, but rather an action of sustaining the life of the talmid chakham with his own life. But [in the case of brain death] to endanger the life of one’s friend with his [advance] permission in order to save the life of a talmid chakham, here there is room to say that this is forbidden, since he is not authorized to transgress the interdiction against murder, even with the permission of the homicide victim. And therefore only in this case [of surrendering to an outside oppressor] did the Sefer Chassidim write [that one act leniently], for the case is only from the perspective of the Jew whether he may surrender himself, this the Sefer Chassidim permitted. But here [in the case of brain death], where the question is from the perspective of the physician whether he may take the life of the patient with his permission, this is forbidden. Regarding application to Noahides, see our discussion in Teshuvot Vihanhagot Vol. 3, no. 362.

    “In any event, in our case it appears that we should not permit except with the ruling of the Beth Din that needs to adjudicate on an ad hoc basis (“kihora’at sha’ah”) the Halakhah, since this may come to excesses, and there is no room here to elaborate further.”

    [End of quotation from second portion of R. Moshe Sternbuch’s responsum]

  51. I feel this is much ado about very little. The Rav’s greatness is undisputed, but a mere psak, with no sources and no reasoning given, would carry very little weight.

    Even as great a posek as R. Moshe Feinstein always gave his reasoning. In fact, that’s a large part of the reason why he was great.

    How much more so in this case, where any reasonable person would say that the Rav’s position is subject to significant doubt.

    I’m afraid that the Rav’s position on this matter (if he ever formulated one) is lost beyond any hope of recovery. Chaval al d’avdin. . .

  52. Even as great a posek as R. Moshe Feinstein always gave his reasoning.
    ==========================
    IMHO always is an overstatement in this case (but I agree in brain death it would be expected)
    KT

  53. Sorry for being unclear. By “lawyer”, I meant attempt to poke holes through over-analysis and asking leading questions. For example, by noting was documentation is currently missing in this discussion rather than focusing on what we have and the story they tell.

  54. For example, by noting was documentation is currently missing in this discussion rather than focusing on what we have and the story they tell.

    What story is that? His views were nuanced. He was against inter-denominational religious collaboration famously. Yet he also permitted being part of Hillel which is inter-denominational religious collaboration.

  55. Another factor that has not been raised is the Rav’s famous propensity to change his mind and to vary his psaks in different contexts.

  56. “Here we have a case in which a recognized Torah giant had a private conversation, practically on his deathbed, with a student. The student asked him (either with an agenda or out of pure curiosity) what his Rebbi thought on a matter ….”

    Let’s try to keep to the facts. The Rav wasn’t practically on his deathbed. I believe I read he was still giving shiurim at YU although he stopped soon thereafter.

    (Two parentheticals: (1) I tried, unsuccessfully to find out when the Rav gave his last shiur at YU. If anyone has that information, please post it. (2) The discussion of the Rav’s physical condition at the time of the meeting is one reason why it’s important to try to establish the time of the meeting more accurately. I wonder if anybody tried to get R. Walfish’s letter to R. Silver which he speaks about in his interview [see below] from either (i) the RCA or (ii) R. Silver’s family. Apparently, those preparing the RCA report didn’t take these almost obvious investigatory steps, although they referred to the Rav’s condition in their report. )

    Second, R. Walfish had no “agenda” nor did he speak to the Rav “out of pure curiosity.” He was the Executive VP of the RCA and had received a request from an RCA member (R. Silver of PA, I believe) about a statute under consideration in that state about time of death. He asked R. Walfish about the RCA’s position. Since, at that time, the RCA’s position on anything was the Rav’s position, he went, in his official capacity, to speak to the Rav about it.

    It would really be helpful if you actually listened to R. Walfish’s video interview if you’re going to comment about what he did.

  57. The Rav’s last shiur in YU was on December 12, 1985.

  58. Thanks. Puts the “practically on his deathbed” in some perspective.

  59. I see the HODS posted this letter but added an explanation of why it is irrelevant, something that is uncharacteristic of all the other documents. Perhaps HODS should also note that Rabbis Soloveichik and Twersky were aware of Rabbi Walfish’s testimony when writing this letter and that those families still stand by the letter’s position.

    http://www.hods.org/English/h-issues/documents.asp

    18. Letter written to Rabbi Mark Angel when he was president of the RCA by Rabbi Aharon Soloveitchik and Rabbi Yitzchak Twersky. Note that in the letter they never say they heard the Rav state that he rejected brain death. Just that as far as they knew “he never issued a halachic decision on brain death.” That could mean that he accepted brain death and never “issued” his decision or that after he said he wasn’t taking a position – to them, years later he had his conversation with Rabbi Walfish and he took a position given the new APNEA test. Also important to note that in Rabbi Walfish’s video testimony he says in the video that the Rav understood Yoma to mean that only respiration mattered and in the conversation with Rabbi Walfish he said that if the new APNEA test could confirm lack of respiration coupled with unconsciousness then that would satisfy him that the person is dead according to halacha.

  60. Gil, HODS is allowed to take a position. It presents the evidence, all the evidence in its possession including that which some people believe goes against its position. At that point, there’s absolutely nothing wrong in it explaining why it still takes the position it does. Would that other organizations taking positions on this controversial and important issue (like committee which prepared the RCA report) be so transparent, fair, diligent and open.

  61. Take a look at the webpage and tell me the comments on this letter alone aren’t out of place.

  62. Lawrence Kaplan – Can you please reply to the charge that you fabricated the report of censoring in Rav Shlomo Zalman’s Maadanei Eretz?

  63. I have not read the comments here so I may be redundant.

    Rav Soloveichik’s reasoning was clear in his conversation with R’ Walfish as well as with Rabbi Tendler. Rabbi Soloveichik felt that his student, Reb Moshe D. Tendler, was the most knowledgeable and qualified in this particular area, and so subsumed his authority to Rabbi Tendler. In fact, he would direct anyone who asked him such questions to Rabbi Tendler, and according to Rabbi Tendler (I’m his talmid, and I’m pretty sure I am quoting him correctly) he said that all such shailos should be paskened by Rav Tendler.

    Incidentally, it is amazing that such a brilliant man was able to admit that a student of his was more qualified to pasken halacha in a certain area.

  64. I agree with R Gil’s comment that subjecting a clear and unambiguous statement to pilpulistic contortions should not lead the rational reader to conclude that there are evidentiary “smoking guns” that need to be located either to support, qualify or vitiate the statement.

    Joseph Kaplan-Let me pose a question at the risk of engaging in overlawyering, to use R Gil’s phrase. In the absence of a direct quote from RYBS on the subject, R Walfish’s video statement is his out of court recollection and relating of a statement based on a conversation that he had with RYBS. Please explain why such a statement, the source and contents of which cannot be subjected to cross-examination, and which has not been submitted as a legally admissible exception to the hearsay statement, should not be considered as such.

  65. That last comment was mine.

  66. Steve – would agree that if Rabbi Walfish would make the same statement in a court of law, and the opposing counsel could cross examine him on his statement that it would then leave the realm of hearsay and enter the realm of direct oral evidence?

    I do agree with you that at present, Rabbi Walfish’s statement really has no more weight then the letter Reb Gil has reproduced here and there are certainly questions raised as to the context of the statements attributed to RYBS by Rabbi Walfish and the intention of RYBS how the statements on this issue were to be treated: psak or opinion that did not rise to level of formal psak.

  67. I also note that it is interesting that there was controversy over the english set of seforim “Piskei Halochos”, which cited oral psakim of RMF. Some decried the fact that there was reliance on oral psakim, especially which seemed to contradict Igros Moshe and other responsa of RMF.

  68. Steve,
    It should not be regarded as hearsay because outside of certain legal systems, none of which we are operating in here, hearsay is not a relevant concept.

  69. Steve, you really should know better. (I apologize up front to any non-lawyers, or, indeed, lawyers, who don’t care a fig about the hearsay rule.)

    Hearsay is when you try to use an out of court statement to prove the truth of that statement. Thus, in our case, if the issue “being tried” is “is brain death halachic death?” then R. Walfish’s testimony about what the Rav said about that issue is hearsay because it is the Rav you would need to cross examine (e.g., how can it be halachic death? what about this source and that source?). But if the issue “being tried” is, as this thread has been about, “what did the Rav say about brain death?” then R. Walfish’s personal knowledge of what the Rav said to him about brain death is not hearsay — R. Walfish has direct personal knowledge of what the Rav SAID when he heard the words come out of the Rav’s mouth — and R. Walfish can, therefore, testify about that issue and be cross-examined on his testimony about that conversation (e.g., what were his exact words? did you or he raise R. Tendler’s name first? did he look tired? did you explain how you were gowing to use his words? etc. etc.).

    Steve, there’s no grey here; it’s really black and white.

  70. Rafarl Araujo wrote:

    “Steve – would agree that if Rabbi Walfish would make the same statement in a court of law, and the opposing counsel could cross examine him on his statement that it would then leave the realm of hearsay and enter the realm of direct oral evidence”

    I question whether the statement would even be admissible in a court of law, due to the inability of counsel to cross-examine the source of the witness’s knowledge. It might be admissible solely for the fact that a conversation took place, but I would question whether a Federal or state judge, at least in NY, would admit the contents of such a statement. NY has a “Dead Man’s Statute” ( CPLR 4519) would also play no small role in determining the competence of a witness offering the testimony, and admissibility of such evidence, especially in actions or proceedings where the cause of death is an issue or where the proponent of such evidence has a financial stake or is otherwise “interested in the event.”

  71. Joseph Kaplan wrote:

    “Hearsay is when you try to use an out of court statement to prove the truth of that statement. Thus, in our case, if the issue “being tried” is “is brain death halachic death?” then R. Walfish’s testimony about what the Rav said about that issue is hearsay because it is the Rav you would need to cross examine (e.g., how can it be halachic death? what about this source and that source?). But if the issue “being tried” is, as this thread has been about, “what did the Rav say about brain death?” then R. Walfish’s personal knowledge of what the Rav said to him about brain death is not hearsay — R. Walfish has direct personal knowledge of what the Rav SAID when he heard the words come out of the Rav’s mouth — and R. Walfish can, therefore, testify about that issue and be cross-examined on his testimony about that conversation (e.g., what were his exact words? did you or he raise R. Tendler’s name first? did he look tired? did you explain how you were gowing to use his words? etc. etc.).”

    Joseph Kaplan-Thanks for your response. However, I question the overly simplistic nature of the same. For what purpose would R Walfish offer the statement other than his recollection as to what he recalled RYBS’s saying to him on the issue? I would suggest that at the most R Walfish’s statement can be offered for the limited purpose that RYBS made a statement, but in no way to admit the truth of the statement, which cannot be subjected to cross-examination.

  72. My response was not simplistic and it is a correct statement of the law. It does not deal with the dead man’s statute. But since we’re not in a law school class or a NYS Supreme Court or US Distric Court courtroom, I think we’ve bored everybody enough about this really not particularly relevant (and interesting, if at all, only to lawyers), issue.

  73. I have no direct knowledge, but it seems very unlike RYBS to just declare that R’ Tendler can speak for him on a halachik issue since he is the expert. Perhaps in terms of describing the science, but not on the halacha.
    Is there any other issue or topic where RYBS subjugated his own thinking to another authority?

  74. Heshy: Rabbi Soloveichik felt that his student, Reb Moshe D. Tendler, was the most knowledgeable and qualified in this particular area, and so subsumed his authority to Rabbi Tendler. In fact, he would direct anyone who asked him such questions to Rabbi Tendler, and according to Rabbi Tendler (I’m his talmid, and I’m pretty sure I am quoting him correctly) he said that all such shailos should be paskened by Rav Tendler.

    This is entirely implausible. Rather than asking a subject how much he was trusted, you should ask other people. For example, try asking Julius Berman or Tovah Lichtenstein whether this is correct. I suspect you will have to duck for cover.

  75. “thought it was more in the realm of aggada and could never “officially” be sanctioned by rabbanim (i.e., if someone thinks of it on his own and does it, it’s holy, but we can’t officially permit it)”

    Sounds a lot like “kanaim pogin bo”.

    “Incidentally, it is amazing that such a brilliant man was able to admit that a student of his was more qualified to pasken halacha in a certain area.”

    Davka a brilliant man would both recognize any lacks of qualification he had, and not be insecure about admitting them.

  76. I suppose the question would be:

    1. Was R’ Walfish, certainly no slouch himself in terms of halachic knowledge, lying?

    Let’s be honest, that’s what at issue.

    2. The letter here, on the other hand, makes no definitive statement. So there’s no need to play one against the other.

    R’ Kenny Brander recounts driving the Rav to the airport for the last time before Pesach, 1986. (A month after R’ Moshe died.) He never left Boston again.

  77. joel rich,

    You’re quite right. There is a huge difference. I’m still very thankful, though, to Elliot Pasik for bringing this information to my attention. It is fascinating stuff.

    (R. Meisels writes that in a concentration camp during the Holocaust a teenager begged him repeatedly to permit him to give up his life for that of an illui who was due to be killed by the Nazis in a few hours. R. Meisels said no; I wonder if he was aware of the sources that R. Sternbuch cites. I have always thought the teenager should have just done it without asking. [Similar to the 400 boys and girls on the ship in the Gemara and the kohanim during the churban who committed “holy” suicide without asking.])

  78. R’ Baruch,
    Thank you and yi’yasher kochakha for citing the episode with R. Meisels.
    http://www.hebrewbooks.org/pdfpager.aspx?req=1924&st=&pgnum=14
    Regarding the 400 boys, Tosafot to Gittin 57b say that the suicide was permitted to avoid being tortured into transgressing one of the three cardinal sins. Tosafot then give a second answer (which I must admit, due to my limited comprehension, I don’t understand) that the enemy would have been “me’anin” (which could be translated as tortured, or could alternatively be translated as sodomized) them and would not have killed them. I don’t grasp the second answer, but in any event, Tosafot to Avodah Zarah 18a only bring the first answer. Accordingly, suicide without asking is not a viable halakhic option.

  79. lawrence kaplan

    anon: I made a mistake in nomenclature. I meant to refer not to Maadanei Eretz, which, as daat y correctly noted on the Retractions post, was republished in 2008 by a non-family source, but to Kitivei Maadanei Eretz, which was published in 2007 by Zehav ha-Aretz with, as the editors note, support from RSZA’s sons, including R. Shmuel Auerbach Shlita. It is this volume which was censored in the way I described. This has been extensively documented in the essay of R. Chaim Rappaort on the Seforim blog, October 23, 2007.

    I have learned not to be surprised when bloggers like you, operating under the cover of anonymity, feel free to engage in vile personal attacks. Your accusation that I “fabricated a report” because I did not reply within a space of three hours to your initial more measured comment, I can only describe as nasty and contemptible. Can YOU please personally apologize?

  80. lawrence kaplan

    Gil: Re your 5:22 pm comment: Finally, there is something I agree with you about!

  81. joel rich on March 30, 2011 at 5:44 am
    Remember too that iiuc r’ybs was known to use “we recommend” or “we don’t” rather than psak (e.g. wtg)
    KT

    agreed

  82. Just to clarify my comment from 7:03 p.m. As mentioned in an earlier forum, I do believe that R. Walfish’s testimony is halakhically valid. [Parenthetically, our Rosh Yeshiva R. Student was very kind to privately consult with me on the applicability of R. Shmuel Landau’s responsum to this situation, and I am most grateful to him for doing so, even if we arrive at different conclusions on this particular point.] My comment at 7:03 p.m. (a credit to R’ Baruch who correctly raised the important issue) was only meant to communicate that Halakhah does not give an individual a carte blance permission to commit suicide without even asking a she’elah, as the case of the 400 boys was a special instance of Kiddush Hashem. But I am not challenging R. Walfish’s testimony.

  83. Shalom Spira,

    Do you really think those 400 boys and girls asked a shaila before they did what they did? How about the kohanim who jumped into the fire of the burning beis hamikdash? How about Chana (of “Chana and her seven sons” fame)? Or Shimshon? Or Shaul? Or Bruria? Do you think any of these people asked a shailah? I think it highly unlikely. Their religion was part of them (internalized) and they acted according to its spirit. There’s a reason Torah she’bal peh is supposed to be bal peh.

    (I agree that most people shouldn’t just commit suicide if they feel like it. But I think there are certain highly exceptional circumstances where it would be permitted. The stories I, and R. Sternbuch cites, are some of them [do you think the Belzer shamash asked a shailah?]. The story in The Tale of Two Cities is as well, I think.)

  84. Shlomo wrote, “Sounds a lot like “kanaim pogin bo”.”

    Yes, I agree.

  85. “video conducted by HODS in which R. Binyamin Walfish discusses his conversation with R. Soloveitchik”

    It all comes down to does one believe R Walfish or not? He is one who I do not believe has a reputation for revisionism of the Ravs statements. The letter and Rabbi Walfish can both be true!! If so would mean the Rav never issued a halachik decision and still tell R Walfish what R walfish claims he did.

  86. “I meant to refer not to Maadanei Eretz, which, as daat y correctly noted on the Retractions post, was republished in 2008 by a non-family source, but to Kitivei Maadanei Eretz, which was published in 2007 by Zehav ha-Aretz with, as the editors note, support from RSZA’s sons, including R. Shmuel Auerbach Shlita. It is this volume which was censored in the way I described.”

    Maadanei Eretz was republished in full in 2008 by Rav Shmuel Auerbach shlita, and included heretofore unpublished letters from RSZA. The respectful mentions of Rav Kook are intact. Rappaport’s post on the Seforim blog, and his accusations of a devious censorship plot by RSZA’s family also seem unfounded, since Rav Shmuel Auerbach himself republished the entire volume in full.

    I apologize if you were insulted. However, I feel that you also ought to be more responsible in your accusations of censorship, and to research the matter more thoroughly before blindly believing anyone who throws out any chareidi revisionist conspiracy theory.

  87. Lawrence Kaplan: one additional point – statements by Professor Lawrence Kaplan carry far more weight than those of “anonymous blogger.” As such, your accusations of revisionism should warrant more thorough research.

  88. Lawrence Kaplan

    annon: Let me make it clear that I welcome calls for greater care and responsbility and more thorough research, and I gladly accept correcton. What I took umbrage at– something you do not seem to appreciate– was your false charge that I “fabricated a report,” with its clear imputations of deliberate dishonesty. Bloggers posting under the cover of anonymity should be extra careful before leveling such (in this case totally unwarranted) personal accusations.

  89. Lawrence Kaplan: I apologize for my harsh language. I did not mean to accuse you of deliberate dishonesty.

    I do think, however, that you deliberately choose to believe and repeat any accusation of chareidi revisionism, without sufficient checking and research. I believe that this was clearly the case in the situation of Maadanei Eretz, as even cursory research would refute (or at least call into serious question) Rappaport’s claim of a censorship plot by RSZA’s family.

  90. R’ Baruch,
    Thank you and yi’yasher kochakha for your response, which raises several important cases. Let’s address them one by one.

    (1) 400 boys – Here, Tosafot are ruling that one may *not* follow their example unless one is faced with the prospect of being tortured into violating one of the three cardinal transgressions. Such a unique fact pattern is unlikely ever to arise in our day and age.

    (2) Shaul Hamelekh – Although Shaul was a great tzaddik (as per the gemara in Eruvin 53b – “imi be-mechitzati” – that Shaul merited the same section of Gan Eden as Shmuel Hanavi), the propriety of his suicide is controversial. R. Yissochor Frand has a tape on this subject, called “Euthanasia” (for Parashat No’ach). He discusses the dispute among the poskim how to intepret the Midrash Rabbah on Genesis 9:5 – “Yakhol Ki-Sha’ul?” Some say the Midrash means that in the exceptional circumstances Shaul faced, suicide was permitted. Others say the Midrash means – on the contrary – *even* in the exceptional circumstances Shaul faced, suicide was prohibited. In practice, we are left with a doubt whether anyone can duplicate Shaul’s feat.

    (3) Shimshon – That’s another R. Frand tape for Parashat Noach. I didn’t listen to it yet, though, so I can’t say.

    (4) Bruriah – The gemara is cryptic as to what exactly transpired. See Wikipedia on “Bruriah”.

    (5) Kohanim in the Beit Hamikdash – Good question; I don’t know. It could be that their situation was like Sha’ul’s and is subject to the same controversy.

    A key source for consideration is R. Zevin’s essay on Shakespeare, which presents the thesis that a person is not the possessor of his own life. And, as you noted, R. Meisels refuses to allow a person to ever sacrifice himself to save another person’s life, no matter how great a benefit that may serve. Clearly, there is a dispute between R. Meisels and R. Sternbuch. But even R. Sternbuch requires consulting a Beth Din in advance. [Special thanks to R’ Elliott Pasik for recapitulating the responsum of R. Sternbuch.]

  91. R’ Baruch,
    I apologize – I neglected the case of Chanah and her seven sons. Here, too, I don’t know the answer. Touché.

  92. Lawrence Kaplan: I have apologized for my harsh words.
    Do you apologize for your irresponsibility in besmirching the name of RSZA’s family by blindly repeating Rabinowitz’s unfounded allegations?

  93. Just to clarify – at the time that Rappaport wrote this post for the Seforim blog, Maadanei Eretz had not yet been republished in full. Therefore, he jumped to the conclusion that the family was engaged in censorship. Shortly thereafter, the family published Maadanei Eretz in full, thus rendering Rappaport’s thesis unsustainable. I do not blame Rappaport for reaching the conclusion that he did at that time; but anyone who repeats such conclusion at present is guilty of either irresponsibility or untruthfulness. One would hope that Lawrence Kaplan, who himself has published on revisionism, would himself be above both.

  94. Rabbi Gil,

    I agree that my statement is not a “proof.” However, there are some who would never say that Rabbi Tendler intentionally lied. As for the relatives of RYBS, they might just not have been aware. That Rabbi Tendler’s statement is further backed up by Rabbi Walfish is enough for me, though I am aware that this is weak in terms of evidence.

  95. Lawrence Kaplan

    anon: I’ve been very busy today, but will comment later. I do not want you to think that –setting to the side you unfortunately worded accusation for which you have, thankfully, apologized — I do not take your general point very seriously,

  96. R’ Shalom Spira,

    My point is that the 400 boys and girls themselves did NOT ask a shailah. Nor did Chana etc. Perhaps one can claim that Shimshon and Shaul were talmidei chachamim and “paskened” for themsleves, but it’s very hard to say the same about the boys and girls and Chana (and the Belzer Rebbe’s shamash who acted instinctively). It’s also hard to envision Shaul or Shimshon actually making cool-headed halachic calculations in their situations.

  97. R’ Baruch,
    Yes, but it is big leap from being mkadesh shem shamayim to heroic suicide. It’s also interesting that no modern poseik seems to focus on the priorities in Horiyot for medical treatment but here iiuc R’ Sternbuch does. Ant way HKB”H should protect us from this ever being lmaaseh.
    KT

  98. “It would seem unlikely that the Rav felt that the gemmara defines death one way , yet we can redefine it.”
    Unless one felt that Gemarrah was explaining death as what people felt at time on basis of science rather than on basisi of mesorah-taht may be the underlying debate about brain death.

  99. “As for the relatives of RYBS, they might just not have been aware. ”
    Very Possible

  100. The question was raised as to wether or not the The Rav’s statements to Rabbi Walfish were meant to be a psak for public consumption.

    I just received an email from Rabbi Walfish where he simply reiterates what he said in his video testimony. The video clip above in the Hirhurim post is only a very small part of the whole video interview which you can watch at ww.hods.org.

    Rabbi Walfish wrote me today: “When I spoke to the Rav ZTL I specifically told him that Rabbi David Silver ZL was asking for a Psak because he was asked by the Pennsylvania legislature to give them the opinion of Orthodox Jewry on the definition of death. So the Rav ZTL was fully aware that he was being asked for a Psak Halachah.”

  101. Lawrence Kaplan

    anon: You are right that I should have checked my facts more thoroughly before accusing the family of revisionism, and for that I aplogize.

    I would remind you however, that this is a blog, and casual and perhaps careless comments are sometimes made that cannot be viewed with the same seriousness as if made in an article or a book. I note that you were evidently unaware of Kitvei Maadanei Arerz, or otherwise, you would not have initially charged me as you did. Moreover, to begin with in two posts you affirmed that Rabbi Rappaport’s accusations were unfounded, and only in an later post conceded that at the time he wrote his article his accusation was reasonable. Again, this is not to justify my carelesness, just to put it into perspective.

    The matter of Kitvie Maadanei Artetz is still perplexing. The internal evidence does point to ideological censorship. I am not certain that the republishing Madanei Aretz shortly afterwards renders Rappaport’s thesis unsustainable. Perhaps there was an outcry after the publishing of Kitvei Maadanei Aretz and the family was pressured into republishing Maadanei Aretz. I emphasize that I am not claiming that this is the case. I would be very interested in Rabbi Rappaport’s view on this matter.

    But my careless blog comment, for which I have apologized, cannot compare to the sustained and ongoing attempt in Charedi rabbinic literature to erase the presence of Rav Kook. The deliberate omission of Shabat Haaretz from the Mafteach the Frankel Rambam and the defense of such omission– no apologies there!– the reprinting books with the haskamot of Rav Kook deleted, all this has been noted by many and is not just the product of my fervid imagination or credultity.

  102. Lawrence Kaplan: I appreciate your honesty in this matter.
    You are correct in noting that I was unaware of Kitvei Maadanei Eretz and that is why I initially charged you as I did. I admit that I do not have a sound explanation for all of the evidence.

    I would not agree with your insinuation that the family only republished Maadanei Eretz in full due to outside pressure. Note that Rav Shmuel Auerbach also recently republished Rav Shlomo Zalman’s Meorei Aish, complete with Rav Kook’s haskama.

    I grant the point that some (or many) Chareidim actively seek to ignore Rav Kook zt”l, but I object to (what I see as) your knee-jerk impulse to paint all Chareidim with this same brush. I do not believe that RSZA’s family deserves such quick negative judgment, as indicated.

  103. “I grant the point that some (or many) Chareidim actively seek to ignore Rav Kook zt”l, but I object to (what I see as) your knee-jerk impulse to paint all Chareidim with this same brush.”
    Are there gedolim who in reshus harabim condemn this tendency of historical revisionism? Are there rabbinic leaders who, unafraid to associate their names with their positions, attack it in shiurim? If so, I’m quite interested if anybody has mp3 recordings that I could listen to.

  104. Lawrence Kaplan

    Anon: Thank for your measured and thoughtful response.

    I wish to emphasize that I mentioned the family’s publishing Maadanei Aretz under pressure just as a tentative possibility. As you indicate, the matter of publishing Kitvei Maadanei Aretz followed by republishing Maadanei Aretz is somewhat strange and requires further investigation.

    I did not mean to tar all Haredim with the same brush. I personally know of a Haredi rabbinic historian who has been very critical re the omission of Shabbat Ha-Aretz from the Mafteach of the Frankel Rambam,though Baruch Pelta’s question as to whether there has been PUBLIC criticsm of this censorship in Haredi circles is worth addressing.

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