Lacking One Sense, Not Two: The Deaf or the Mute, for Peri Megadim

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by R. Gidon Rothstein

We will see many exceptions, so let us stress the rule at the outset: a Jew lacking either the ability to hear or to speak counts as a full halachic adult. Granting our sometime need to verify his/her mental competence, and areas where his/her disability will prevent full participation, halachah assumes a person either deaf or mute is an ordinary adult with a sensory challenge.

[In the course of the discussion, Peri Megadim will come back to a heresh, confronting us again with why the heresh differs so much. We’ll get there.]

Blowing Shofar

A person who cannot hear cannot be the agent of others fulfilling an obligation which involves hearing, such as blowing shofar or reading the Megillah on Purim, because this person himself is not included in the mitzvah, as he cannot hear the blowing or reading. One excluded from an area of halachah cannot perform it on others’ behalf.

In neither case is the conclusion as obvious as it seems. For blowing the shofar, an ilem, someone who cannot speak, is eligible despite his inability to recite the berachah on the mitzvah. R. Eisenberger points out Peri Megadim himself (to Magen Avraham 589;1) noted the contrast with separating terumah, where the berachah was enough of an issue to rule out a mute performing the action. In the case of shofar, any of the assembled can recite the berachah (since they, too, are fulfilling the mitzvah), and the mute person can blow.

[We might have thought the rule about terumah showed us Hazal insisted the person who would perform the mitzvah be the one to recite the berachah. Peri Megadim is inferring the concern was that the berachah be said.]

Reading Megillah

The question of a deaf person reading the Megillah seems at odds with a well-known halachah, someone can fulfill the obligation to recite Shema despite speaking too quietly to hear his/her own words. It shows physically hearing oneself is not an indispensable requirement for a valid recitation. If so, why can’t a deaf person read for others?

For that reason, Bah (cited by Magen Avraham) held we do in fact validate a deaf person’s reading of the Megillah were it to have already happened. The rule he should not read was lekhathillah, the proper way to have it happen (as is true of saying Shema as well, that lekhathillah we should hear ourselves recite the words). Shulhan Aruch followed Rambam, however, who invalidated the reading completely.

Peri Megadim sends us to Lehem Mishneh and Taz for more discussion. Taz viewed it as an example of kol ha-raui le-bilah ein bilah me-akevet bohalachah frequently cares about the possibility of a certain action, not it in practice happening that way. Someone who could hear him/herself recite Shema can get away without it, where someone who cannot hear also cannot read). As R. Eisenberger notes, many disagreed with Taz, especially because many held the principle of kol ha-raui le-bilah, we only care about potential ability, applies only where the Gemara mentioned it.

Instead, Beit Yosef and Lehem Mishneh attributed the difference to Megillah’s being a matter of pirsumei nisa, publicizing a miracle, although it is not quite clear why that necessitates the reader to hear it. If he reads for ten thousand people, is there less publicizing if he cannot hear it himself? I think they might mean if the person reading the Megillah cannot hear it, it seems less vital to hear, and dampens audience reaction.

However we explain it, Peri Megadim agrees this is not a first choice, just as we would not recommend someone read Shema without hearing it, regardless of the reading’s being acceptable after the fact.

Performing Halitzah

Halitzah is the ceremony to free a woman whose husband passed away without children. By Torah law (and original preference, with a lasting debate about whether Hazal changed that preference to halitzah), she should marry one of his brothers. Should the brother decline, the ceremony involves the two going to court and enacting halitzah, where they each speak in turn. For either person, a mute cannot participate.

With all that, Peri Megadim closes the paragraph emphasizing such people nonetheless count as competent adults in all areas. Their disability may mean certain ceremonies are beyond them, having no impact on their overall status. As an example, he later raises the possibility an ilem, a mute, should listen to someone else for all mitzvot involving recitations. Sounds simple, except his example is shenayim mikra ve-ehad targum, the obligation to read the weekly Torah portion twice in the original and once a recognized translation (Onkelos or Rashi), a more significant time commitment than a berachah here or there.

Hard of Hearing as Opposed to Deaf

Bechor Shor pointed out a problem with this idea, Rambam’s grouping a deaf person with a heresh regarding financial transactions. Hazal instituted a right for a heresh (a deaf-mute) to buy or sell movable property with remazim, hand signals or the like, to indicate his intentions, and Rambam says that is what we do with a person who is only deaf as well.

One of the explanations Beit Yosef gave for Rambam—when other sources clearly call such a person a pikeiah, an ordinary, mentally competent Jew—was that one needed to have some hearing to be considered a pikeiah.

[Were this to be true- and Peri Megadim stresses all other authorities disagreed, understood the idea of a medabber ve-eino shome’a, one who can speak but not hear, to mean s/he cannot hear at all—it would at least explain the status of a heresh somewhat better. It would mean the inability to hear takes away too much of a person’s experience of ordinary life for that person to be considered fully part of this world.

Disability advocates would obviously object, but I think it makes a point about the narrowness of human experience. We can find many comments—some in Peri Megadim coming up—that treat a heresh as a shoteh, not in his/her right mind. Were we to find out it is all about the lack of hearing, we could adjust our framing, the lack of hearing changes human experience enough for us to think the version of life Gd prescribed in the Torah cannot be made obligatory for a heresh, and such people have to find other ways to build their lives.

It opens the door to saying a shoteh’s insanity—a topic for next time—need not be a judgment of competence, it could be about whether his/her experience of life comes close enough to ours to be included in our version of service of Gd.]

Within this view, the idea we prefer a heresh not separate terumah because of the inability to recite the blessing is only a preference when the heresh can hear a bit. If s/he cannot hear at all, the action has no halachic force or impact.

A Blanket Rule

Peri Megadim notes the requirement to check these partial harashim—the deaf or mute person—do understand their actions and the consequences of those actions. It reminds us the true heresh, deaf-mute, cannot attain halachic status regardless of checking. As Peri Megadim says, the heresh could be a pikeiah gadol, greatly wise or insightful, and yet count as an halachic heresh, exempt from mitzvot and unable to act as a full adult member of the Jewish people [to me, more ratification that this is about similarity of experience rather than a judgment of competence or ability. A heresh isn’t necessarily deficient, s/he doesn’t partake of the world in a way similar enough to most people to be included in their rules.]

However, Peri Megadim attributes it to halachah’s general wish to avoid overly nuanced distinctions. If some harashim count as full adults, we will not know which are which. He refers us to Shu”t Tzemah Tzedeck, who said we do not distinguish among harashim, and R. Eisenberger tells us Divrei Yatziv (the Klausenberger Rebbe, the rebbe of a contemporary gadol, R. Asher Weiss) thought heresh status continued even if the heresh learned to speak.

Bah and Shach were sure someone struck mute and deaf after birth becomes a heresh as well, despite our knowing the person used to be an ordinary Jew. For them, the fact of currently being unable to communicate confers the status of heresh; it again seems about a person’s participation in the ordinary flow of life rather than concerns about mental capacity.

R. Ovadya Bertinoro seems to disagree, in his widely used commentary to Mishnah. He refers to ahereshas someone born that way, who never heard people speak nor spoke to people. Peri Megadim notes Gittin refers to a heresh she-nitharesh, someone who became a deaf-mute, a phrase that most simply accords with Bah and Shach. However, he suggests it might be a matter of safek, we can no longer be sure of a deaf-mute’s mental state, and therefore cannot rely on his/her actions as being those of a full adult.

Seeing it as safek launches us into the world of decision rules about when we do or do not consider a minority option to have changed an existing situation, complicating the topic considerably.

Summing It Up

Those details aside, Peri Megadim brings us back to the main point, the heresh who has the same halachic status as one not in his/her right mind (shoteh, our next category) was born that way; one to whom it happened later is a safek, possibly has that status.

One who only cannot speak, from birth, is generally considered part of our world. Should a person become mute, we require checking s/he still operates in the same we the rest of us do (by asking questions and getting answers in writing, or with sign language).

Someone born that way does not need to be checked for the second half of a self-contained ceremony—so if s/he got married and then divorced, we do not need to test his/her status, because whatever it was at marriage, it was at divorce.  Where the mute is partaking of a pre-existing Biblical institution, such as to perform yibum, we have to check his status.

Peri Megadim thinks rabbinic issues do not require the same level of care, so we could include such people in a minyan without checking. (R. Eisenberger points out questions about this topic I will leave for another time).

Someone deaf in one ear raises no questions, although a passage in Hagigah 20 exempts such a person from the obligation of re’iyah, going to the Temple on the holidays.

Overall, the issue of heresh teaches us about the importance of human communication in developing our personalities and membership in society.

Next time, shoteh, who has wildly different reactions to life than we do.

About Gidon Rothstein

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