The Medical Cosmology of Halakha: The Expert, the Physician, and the Sick Person on Shabbat in the Shulchan Aruch

One of the best-known principles of halakha is that Shabbat is violated to save a life. Who does this saving and how do we know that a life is in danger? What categories of illness violate Shabbat and who decides? A historical-sociological analysis of the roles played by Jew, non-Jew, and physician according to the approach of “medical cosmology” can help us understand the differences in the approach of the Shulchan Aruch compared to later decisors (e.g., the Mishnah Berurah). Such differences illuminate how premodern medical triage coexisted with a different halakhic understanding than that of the biomedical age

Not Judging by Appearances: The Role of Genotype in Jewish Law on Intersex Conditions

Jewish communities have always had children with intersex conditions, which involve atypical anatomic, chromosomal, or gonadal sex. In the last several decades, Orthodox rabbis have issued ad hoc rulings to assign sex to children and adults with intersex conditions. However, rabbinic texts reflect disunity over whether to assign gender, for the purposes of Jewish law, according to outward appearance or chromosomal makeup. This rabbinic controversy has been exacerbated by an increasingly complicated medical picture. Endocrinologists have diagnosed more than two dozen intersex conditions, across nine overarching congenital types. Such complexity makes it difficult for rabbis to make across-the-board decisions about gender assignment. This essay examines how rabbinic law may change because gender cannot be assigned consistently by chromosomal sex—despite the prevalence of this formulaic criterion in rabbinic opinions. Consequently, Jewish legal reasoning is poised to shift from a static reliance on chromosomal sex. The essay also considers the implications of this trajectory on Jewish law towards sex change surgery and transsexuals

The Transitioning of Jewish Biomedical Law: Rhetorical and Practical Shifts in Halakhic Discourse on Sex-Change Surgery

This article examines discourse dynamics in Jewish law on sex-change surgery (SCS) and, in general, transitioning between genders. Orthodox medical ethics has moved beyond the abstract condemnation of SCS to the design of practical rules for transsexuals living in observant communities. The reasoning against SCS has also shifted, both in complexity and with implicit ties to Christian and secular tropes. By medicalizing or, conversely, spiritualizing the experiences of transgendered persons, a few Orthodox authors are opening up interpretive space for sympathetic responses to SCS. Such transitions reach their most elaborate expression in Israeli Orthodox rabbi Edan ben Ephraim’s 2004 monograph, Generation of Perversions, which has taken center stage in Orthodox deliberations on transsexuality. Overall, halakhic discourse seems to be moving in innovative, unavoidably interdiscursive directions

Oral and Written Communication and Transmission of Knowledge in Ancient Judaism and Christianity

This paper examines the contexts of oral communication and the use of written messages in Josephus’ writings, the New Testament, and rabbinic literature, and discusses the possible reasons for using orality or writing in the respective Jewish and Christian contexts in antiquity. It is argued that an individual’s social power depended on his position within the communication network and his ability to control and manipulate the dissemination of knowledge among his co-religionists. Mobility was an important means of creating these networks and the most mobile rabbis would have been the most well-connected

Philosophical Ruminations about Embryo Experimentation with Reference to Reproductive Technologies in Jewish “Halakhah”

The use of modern medical technologies and interventions involves ethical and legal dilemmas which are yet to be solved. For the religious Jews the answer lies in Halakhah. The objective of this paper is to unscramble the difficult conundrum possessed by the halakhalic standing concerning the use of human embryonic cell for research. It also aims to take contemporary ethical issues arising from the use of technologies and medical advances made in human reproduction and study them from an abstract philosophical perspective. Instead of providing any Jewish practical ruling the paper have tried to incite, stimulate and encourage philosophical thoughts about the issue through the intensive understanding of traditional Jewish thoughts. In this paper, an objective as well as a deep-rooted study has been adopted about the use of human embryos for research and the Jewish adoption of assisted reproductive technologies through the prism of the knowledge of Halakhah, Torah and Talmud. The paper finds that the embryo research sits at the crossroads of many halakhalic issues. Judaism adopts the belief that God has created man in his own image. The Jews not being dogmatic decipher “the image” of the creator as the ability to discern and reason. It follows that Judaism does not subscribe to the notion that tampering with nature is prohibited. To the Jews the mitzvah for procreation is so great that they are open to reason and adopt newer medical advancement in procreation. The Jewish laws are not only for engagement in intellectual exercise or academic pursuit but subscribe to a higher order of moral conduct. The Jewish approach is not situational but also casuistic in resolving conflicting medical issues

Responses to comments and elaborations of previous posts III

This post is dedicated to the memory of Rabbi Chaim Flom, late rosh yeshiva of Yeshivat Ohr David in Jerusalem. I first met Rabbi Flom thirty years ago when he became my teacher at the Hebrew Youth Academy of Essex County (now known as the Joseph Kushner Hebrew Academy; unfortunately, another one of my teachers from those years also passed away much too young, Rabbi Yaakov Appel). When he first started teaching he was known as Mr. Flom, because he hadn't yet received semikhah (Actually, he had some sort of semikhah but he told me that he didn't think it was adequate to be called "Rabbi" by the students.) He was only at the school a couple of years and then decided to move to Israel to open his yeshiva. I still remember his first parlor meeting which was held at my house. Rabbi Flom was a very special man. Just to give some idea of this, ten years after leaving the United States he was still in touch with many of the students and even attended our weddings. He would always call me when he came to the U.S. and was genuinely interested to hear about my family and what I was working on. He will be greatly missed

Mishpat Ivri, Halakhah and Legal Philosophy: Agunah and the Theory of “Legal Sources"

In this paper, I ask whether mishpat ivri (Jewish Law) is appropriately conceived as a “legal system”. I review Menachem Elon’s use of a “Sources” Theory of Law (based on Salmond) in his account of Mishpat Ivri; the status of religious law from the viewpoint of jurisprudence itself (Bentham, Austin and Kelsen); then the use of sources (and the approach to “dogmatic error”) by halakhic authorities in discussing the problems of the agunah (“chained wife”), which I suggest points to a theory more radical than the “sources” theory of law, one more akin to the ultimate phase of the thought of Kelsen (the “non-logical” Kelsen) or indeed to some form of Legal Realism (with which that phase of Kelsen’s thought has indeed been compared)? I finally juxtapose an account based on internal theological resources (a “Jurisprudence of Revelation”). Downloadable at at http://www.biu.ac.il/JS/JSIJ/jsij1.html