Deaf Mutes in Halachah, a First Look

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by R. Gidon Rothstein

Part Two of Peri Megadim’s Petihah Kollelet: The People of Halachah

After laying out the levels and types of law in halachahPeri Megadim moves to the people of the system, ten types of them. He starts with a heresh, who is unable to hear or speak. Halachah groups such a person with a shoteh, someone not in his/her right mind, and a katan, a minor, all three exempt from all mitzvot, Biblical or rabbinic.

[The easiest way to explain the heresh’s standing suggests it should change today, except halachah seems to assume it is an inherent status. We could imagine arguing the heresh in the time of the Talmud, in a world without sign language or visual media or much reading material, would have seemed odd to the point of insanity. Phrased that way, however, we would be tempted to think to change such people’s status today, where we have the communication tools to be confident even a deaf mute is aware of the world in ways similar to our own.

Perhaps a future Sanhedrin will come to that view in some way, and it matters for many areas of Jewish law. For now, where halachah continues to assume a full heresh is exempt from all mitzvot, I think we have to explain the issue slightly differently. The heresh experiences the world without two of the most significant senses through which the rest of us access life. I wonder whether halachah understood a world built without both those senses to be too distant from ours to expect the Torah to apply to such a person as well. As with the classic problem of sensory perception in general—how do I your red is the same as mine?—I think the Gemara might be telling us the heresh is too different to be governed by the same rules.]

Peri Megadim is about to show us their status is not as black and white as it might sound.

Exempt or Irrelevant?

In some contexts, a heresh seems competent to produce an halachically valid result. The rules for shehitah, slaughtering an animal so as to be permissible to Jews to eat, say only that a heresh, shoteh, or katan needs an adult watching for the act to be effective. Levush thought the adult provided the necessary mental awareness, the heresh the physical act, meaning this rule showed nothing new about the heresh’s competence.

Tevuot Shor disagreed, because the Mishnah itself says the adult’s presence is to allay the fear the heresh will mess up the shehitah without realizing it. Hullin 86 says if such a person killed an animal without an adult present, we are unsure of whether it is kosher, where if such people lack all mental competence, the shehitah in that situation should be definitely ineffective.

Tevuot Shor also pointed to a responsum of Maharil, who ruled a heresh child did count towards the father’s fulfillment of peru u-rvu, the obligation to procreate. Maharil said that despite his or her challenges, the child is relevant to the world of Torah and mitzvot, for example in the world of damages, where damage to the property of a heresh, shoteh, or katan is treated just like to the property of any other Jew.

Peri Megadim agrees with Tevuot Shor, except for one other example he gave. Tevuot Shor had noted the husband of a woman who gives birth brings the requisite sacrifices at the end of her post-partum recovery even if she is a shotah. Those sacrifices are often spoken of as kapparah, atonement of some sort, telling Tevuot Shor the woman had the same need for kapparah as other women, and kapparah implies participation in the world of mitzvot.

Peri Megadim demurred, because the main impact of those sacrifices is to restore the woman’s right to partake of sacrificial meat (and/or terumah, the produce given a kohen as part of the harvest). Her husband might bring the sacrifices only for that practical reason, without telling us about her overall halachic status.

Other halachot show highlight the vague status of such people. For a minor [note: most often, heresh, shoteh, and katan are treated the same], no one is allowed to actively foster sin (such as by giving him/her non-kosher food), where only the father must stop the minor from sins s/he chose on his/her own (as R. Eisenberger notes, this is a part of the mitzvah of hinuch, obligatory on the father and not outsiders; I suspect others are told they need not step in because education is child specific. Peri Megadim here assumes the same parameters apply to our heresh, although R. Eisenberger notes Peri Megadim himself in Orach Hayyim seemed to think there was no concept of education for a heresh or shoteh.)

Put it all together, and a heresh seems to be a person to whom mitzvot apply while not having the needed mental competence to be held accountable for his/her failures of observance. They cannot help other Jews fulfill their obligations because of this lack of mental awareness, making the word “exempt” appropriate (although incomplete, because mitzvot do apply to them, such that they are enough part of the world of shehitah to perform a valid act of ritual slaughter).

Marriage and Its Acts

hereshet’s sexual relations count as halachic acts, so if she has relations with someone prohibited to her (a relative, for example, or someone prohibited with a plain lav, such as a mamzer), he renders her an halachic zonah, who may not marry a kohen (zonah here does not carry the same connotations as in modern Hebrew, especially since we do not think she has the mental competence to consent. She is a zonah in the sense she may not thereafter marry a kohen). For this to be true, her participation in the act, despite her not being seen as mentally competent, has halachic meaning.

Nevertheless, a kohen may marry an ordinary hereshet, one who has not had problematic relations. (R. Eisenberger wonders why we would have thought he could not. He suggests Peri Megadim meant the general obligation to marry, although that does not explain Peri Megadim’s reference to an obligation of ve-davak be-ishto, to cleave to one’s wife. That verse is from the creation story, and does not obviously create an obligation applying to Jews today, nor to kohanim in particularHe notes Minhat Elazar 3;9 cited other passages in the Gemara implying marriage should involve an awareness of the need for fidelity, otherwise it is akin to bestiality, and says we might have thought a hereshet cannot be sufficiently aware of this issue. Hazal’s instituting a wedding ceremony and status for them solved the problem.

For his question about why a kohen, I suggest Peri Megadim understood the Torah to have defined a higher standard of marital purity for kohanim, the reason they may not marry a gerushah, zonah, or hallalah. That would explain his citation of ve-davak be-ishto, because this general phrase in Bereshit took on new meaning for kohanim, whose marriages had to be more fully monogamous than others.)

Hametz and Tefillin, Boundary Issues

If their transgressions do not count as intended, we might think hametz they owned on Pesah would be free of the rabbinic prohibition to gain any benefit from it after Pesah. Hazal were looking to punish those who retained hametz willingly, so we might have excluded a hereshPeri Megadim disagrees, because the prohibition was a lo pelug, made even where the person who retained the hametz had no negative intent, such as where it was kept accidentally or against a Jew’s will. To make sure people rid themselves of their hametzHazal might have included the hametz of a heresh, to leave no outs or options.

(Peri Megadim suggested the Rabbis prohibited hametz owned on Pesah be-shogeg, where the owner was not aware of the issue, to avoid ha’aramah, people pretending it was unwitting when it was not. R. Eisenberger points out this does not explain ones, where the hametz was in the Jew’s possession against his/her will and yet Hazal prohibited it after Pesah. I wonder whether Peri Megadim made the point because it helps give a reason they would have prohibited the heresh’s hametz, to avoid people using them as a location for their legally fictional way of getting around the obligation to get rid of hametz.)

Shulhan Aruch Orah Hayyim 39;1 rules a minor cannot write valid tefillin, at odds with the case of shehitah we started with, where an adult’s help solves the problem. The same is true of writing a get, a bill of divorce, the minor can do it as long as an adult oversees it. Because valid tefillin are written only by those included in the obligation, Peri Megadim suggests the minor is fully exempt from the obligation. Shehitah is a matter of removing a prohibition, and the prohibition applies to a minor, if only in terms of adults being proscribed from giving the minor non-slaughtered meat.

Since Peri Megadim has previously argued heresh is included in obligations as well as prohibitions, he thinks the heresh should have been able to write tefillin with an adult standing over him. He uses the analogy of someone whose hand was cut off and therefore cannot put tefillin on the correct hand. The heresh’s lack of competence is also a technical flaw, not an overarching or disqualifying one, and should leave room to have another adult fill it in.

However, a heresh clearly cannot serve as messenger, is not part of arvut, the interconnection of Jews that allows some to act on behalf of others to fulfill their obligations, and the Mishnah says a heresh is not obligated in mitzvot. With all that, Peri Megadim insists they are still benei mitzvot. While they could not write gittin on their own, Peri Megadim claims they are be-torat gittin, part of the world of gittin, because they, too, may not have relations with a married woman (although, as he concedes and leaves unresolved, that should mean a partially converted non-Jewish slave is also be-torat gittin, and we know he is not).

As a final confounding factor, Tevu’ot Shor wrote (in another book of his, Bechor Shor) that a heresh cannot write tefllin, with the exact reasoning that a heresh (and shoteh and katan) is exempt from all mitzvot, surprising words from the man who stood up for their relevance to shehitahPeri Megadim leaves the matter not completely clarified, but has made clear he thinks the heresh’s exemption from mitzvot is not as overarching as we might think, that the heresh has more connection to observance (and certainly to avoiding transgression) than commonly recognized, even as s/he also is not the usual full member of a Jewish community.

Next time, lesser forms of heresh.

About Gidon Rothstein

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