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How to apply Jewish law to medical questions?
A Methodology for Jewish Medical Ethics, Rabbi Elliot N. Dorff
In the long interaction between Judaism and medicine, Jews have not
flinched from exploring and applying whatever could help people overcome illness, seeing this process not as in infringement upon God’s prerogatives, but as aiding God in the process of creation. In doing so, they have been remarkably open to seeking and using new discoveries. Medieval rabbis-physicians, in fact, largely ignored express talmudic passages detailing specific cures which they found to be ineffective (4). They saw their overarching duty in this area to be the healing of the sick, even when that required deviating from precedents encased in legal sources.
Our situation is similar. When we turn to many of the issues in
contemporary bioethics, we are confronted with the fact that precedents within the tradition assume a context radically different from our own. Those dealing with extending the life of the dying, for instance, number very few and, more significantly, assume far less human ability than we now have to affect the condition of the dying.
Orthodox rabbis, by and large, have nevertheless taken their customary, literalist approach. Some have indeed been ingenious in making the few precedents available seem to determine the outcome of contemporary questions; Basil Herring’s “Jewish Ethics and Halakhah for Our Time” is an especially thorough and fair presentation of the various attempts to do this on many issues. This procedure, however, ignores the historical context of past medical decisions and the crucial differences between medical conditions then and now. in Arthur Danto’s felicitous phrase, such responses to the issues are paradigm examples of “misplaced slyness”.
The sources simply did not contemplate the realities of modern medicine; for that matter, American legal sources from as late as the 1940s did not do so either. Consequently, reading such laws and precedents closely to arrive at decisions about contemporary medical therapies all too often amount to sheer sophistry. The texts themselves in such attempts are not providing clear guidance but are rather being twisted to mean whatever a particular rabbi or judge wants them to mean.
In a different form, this is simply the legal method. To bring new
situations under the umbrella of the law, judges in any legal system must often stretch precedent to make them relevant to new circumstances. Indeed, for a legal system to retain continuity and authority in current decisions, this _must_ be done. Thus, in our case, if a decision is going to be Jewish in some recognizable way, it _must_invoke the tradition in a serious, and not a perfunctory, way. One _can_ do this without being devious or anachronistic IF ONE DOES NOT PRETEND THAT ONE’S OWN INTERPRETATION IS ITS ORIGINALLY INTENDED MEANING (its peshat) OR ITS ONLY POSSIBLE MEANING.
The Conservative objection to many Orthodox reading of texts is thus
both to tone and method: not only do many Orthodox responas make such
pretensions, often with an air of dogmatic certainty, but they do so with blatant disregard for the effects of historical and literary context on the meaning of texts and for the multitude of meanings that writings can often legitimately have.
Even if we set aside such matters of intellectual honesty, on a sheerly practical basis, literalist efforts to arrive at contemporary medical decisions seem to me to be misguided. Even if we presume that our ancestors were infinite wise and perhaps even divinely inspired in making the decisions they did, there is no reason to suppose that their decisions would bear those qualities in our own setting. On the contrary, I am sure that they themselves would have insisted, as the Talmud did, that each rabbi now take a good look at “what his eyes see” (5) to be sure that his or her application of the tradition is deserving of the godly qualities of wisdom and kindness which we ascribe to Jewish law.
In our topic, this means, in my view, what it meant for medieval Jewish physicians and rabbis. Specifically, we should apply the general theological and legal concepts which emerge out of our heritage to the conditions at hand, even if this means deviating from the specific directions given in a specific precedent. We want to root our decisions as strongly as possible in the tradition, but not at the cost of ignoring the significant differences between the medical circumstances of our own time and those of the past. To carry out this program, we must first determine whether or not medicine has changed significantly in the area of medicine we are considering; that itself is a judgement which depends on a substantial understanding of the history of medicine, among other factors.
If medicine in this area is more or less the same as it was in time
past, we can proceed in a fairly straightforward, legal manner. If, on the other hand, we judge that innovations in medical practice have made conditions relevantly different from what they previously had been, we will have to stretch some halakhic and aggadic sources beyond their original meanings. We _should_ do this in order to retain clear connections to the tradition, not only in spirit and concept, but even in expression. At the same time, we should openly state what we are doing – namely, that we are choosing both the texts to apply and the interpretations of those texts in order to develop a Jewish medical ethic which carries traditional, Jewish concerns effectively into the contemporary setting.
In insisting that we retain the legal form and substance of past Jewish law, I am disagreeing with Reform positions such as that articulated by Matthew Maibaum. He claims that radical individualism and secularism of contemporary American Jews means that “to an increasing degree, trying to talk about Jewish medical ethics from a traditionalist point of view will impress no one.” (6) He objects to using not only the precedents of the past, but even many of the concepts which underlies those precedents – concepts such as God’s ownership of our bodies.
It seems to me that this makes one’s claim to articulate a Jewish
position all too tenuous. With such an approach, for example, how does one rule out _anything_ as being contrary to Judaism? Why, indeed, would one be interested in developing a specifically Jewish approach to medical matters in the first place?
…For most Orthodox rabbis, who read the classical texts of the Jewish tradition in a literalist way, such texts are totally determinative, and so the only substantive question is how you are going to read your decision out of, or into, these sources. For at least a segment of the Reform movement, the goal, as Maibaum says, is to show secular Jews that a given Jewish position “also happens to be immediately and centrally good for them”. If this cannot be shown, then the whole tradition is “like a fine fossil or an elegant piece of cracked statuary; it is venerable, but it is not relevant today.” (7) In a more muted form, this is also the position taken by Reform rabbis like David Ellenson and the right-wing Reform rabbi Solomon Freehof, for all of whom individual autonomy is a key desideratum.
I am taking a methodological position somewhere between these two poles affirming the necessity to root a contemporary Jewish medical ethic in the Jewish conceptual and legal structure of the past, but recognizing that to do so honestly and wisely we will have to make difficult judgements as to when and how to apply that material to substantially new settings.
The position I am affirming, however – largely identified with the
Conservative movement in American Judaism – in these matters, as in all others, is not defined soley by what it denies or by it comparison to others. On the contrary, central to its identity is its positive convictions about the proper way to understand and apply Jewish legal sources. In brief, it affirms that an accurate assessment of Jewish conceptual and legal sources – both early texts and their later interpolations throughout history – requires studying them in their historical contexts. Once one has done that, one can identify the relevant similarities and differences between previous settings and our own. Only then can one hope to apply traditional sources authentically and perhaps even wisely to contemporary conditions.
Excerpt from “A Methodology for Jewish Medical Ethics” by Elliot N. Dorff. p.161-176 in “Contemporary Jewish Ethics and Morality: A Reader” Ed. Elliot N. Dorff and Louis E. Newman, Oxford University Press, 1995
(3) “The Interaction of Jewish Law With Morality”. Judaism, Volume 26, No.4, Fall 1977, p. 455-466
(4) Tosafot, Talmud Bavli, Moed Katan 11a; Jacob ben Moses Mollin,
Yalkutai Maharil, cited in Fred Rosner “Medicine in the Bible and the
Talmud”,p.21 (Ktav, NY, 1977); Solomon Luria, Yam Shel Shelomo, “Kol
Basar” section 12; Joseph Caro, Kesef Mishneh [commentary to the
Mishneh Torah] Hilkhot Deot, 4:18; Abraham Gombinger, Magen
Avraham[commentary to Shulkhan Arukh] Orah Hayim 173
(5) Talmud Bavli, Bava Batra, 131a. To see how this text and others like it were used in the middle ages see: “A Living Tree: The Roots and Growth of Jewish Law”, Elliot N. Dorff and Arthur Rosett,p.383-395 (State University of New York Press, Albany, NY, 1988)
(6) Matthew (Menachem) Maibaum, “A ‘Progressive’ Jewish Medical Ethics: Notes for an agenda”, Journal of Reform Judaism Vol. 33,No.3, Summer 1986. p.29
References and resources
Eugene Borowitz “Choices in Modern Jewish Thought” Behrman House, NY
“Contemporary Jewish Ethics and Morality: A Reader” Edited by Elliot N. Dorff and Louis E. Newman,Oxford University Press, 1995. See chapters 9, 10, 11 and 12 (pages 129-193)
“Matters of Life and Death: Jewish Bio-Ethics” by Rabbi Elliot N. Dorff. $34.95, HC Jewish Publication Society, 1998.
Irving Greenberg “Toward a Covenantal Ethic of Medicine” in “Jewish Values in Bioethics”, Edited by Levi Meier (Human Sciences Press, NY, 1986)
“Practical Medical Halakha” by Fred Rosner and Moshe Tendler. Jason Aronson, 1997
“Medicine and Jewish Law” Volumes 1 and 2. By Fred Rosner.
Pub. by Jason Aronson, 1994, pb, 216 pages.