Evolving Attitudes Towards the Handicapped in Jewish Law: The Case of the  Deaf-Mute

Insight Israel, Vol. 3, No. 1 (October 2002)

During almost four millenia of Jewish history, attitudes towards various topics have  evolved. One of the best ways to examine changing attitudes, is to examine the halakhic or legal sources, since they do not deal in generalities but rather with the specifics of Jewish life. By examining the halakhah, one can see how Jews dealt with an issue on a day-to-day basis and one can also deduce the rabbinic attitudes towards the issue in question.

Our classic sources discuss many types of handicaps. Since space does not allow us to deal with all of these disabilities, we shall zero in on one disability – deafness – in order to show how Jewish law has evolved with regard to that issue due to changes in society and education.

The bible does not devote a lot of space to deafness. Leviticus 19:14 contains the classic injunction: “You shall not curse the deaf nor place a stumbling block before the blind, and you shall fear your God, I am the Lord”.

Rabbinic literature, on the other hand, discusses the deaf-mute – called heresh or hershim in the plural – at length. The general assumption was that a heresh is not mentally competent because he cannot speak or understand speech (Hagigah 2b). Indeed, this was the assumption until modern times among all peoples. As a result, the heresh was usually grouped with the shoteh (insane) and kattan (minor).

He was not normally considered competent to serve as a witness (Hoshen Mishpat 35:11).  A heresh who injured someone could not be punished by a Jewish court of law (HM 424:8). A heresh could buy and sell movable goods, but not real estate (HM 235:17-19). If a heresh found lost property, anyone could take it away from him, but the rabbis enacted that such property must be returned to him “for the sake of peace” (HM 270:1). Similarly, a heresh was limited in ritual functions. A heresh could not blow the shofar nor read the megillah because they must be heard (Orah Hayyim 589:2; 689:2). A heresh could not give the priestly gift of Terumah (Terumot 1:1-2) nor perform ritual slaughter lest he invalidate the slaughter (Hullin 1:1).

On the other hand, a heresh could contract a marriage or execute a divorce by signing his intent (Yevamot 14:1). The Talmud also had a more lenient attitude towards a person who was deaf but not mute or vice versa (Hagigah 2b).

These laws remained on the books throughout the middle ages. The strict approach is epitomized by R. Menahem Mendel Krochmal (1600-1661), who was asked about the legal status of two deaf mutes who were highly skilled tailors. He said that they still have the talmudic status of a heresh (Tzemah Tzedek, no. 77). This approach was continued by Maharam Schick (1805-1879), despite the development of schools for the deaf. He said that speech by the deaf is still imitation “like the act of a monkey” and does not indicate normal intelligence (Responsa Maharam Schick, Vol.  I, Even Ha’ezer, no. 79).

Nonetheless, a seismic shift in attitudes towards the heresh occurred in the nineteenth century, as more and more Jews began to attend schools for the deaf. Rabbis who visited those schools and read some of the scientific literature, were so impressed that they changed the halakhah.

1. Simhah Bunim Sofer (d. 1906) reports that his father R. Abraham Sofer (1815-1871) visited the Vienna Institute for the Deaf and Dumb ca. 1850. He was astonished by the accomplishments of the pupils and remarked that he doubted whether the exclusion of hershim from halakhic responsibility was applicable to people who had been trained in such a fashion (Shevet Sofer, Even Ha’ezer, no. 21).
2. Azriel Hildesheimer (1820-1899), a leading German Orthodox rabbi, disagreed with the Maharam Schick. He said that the talmudic Sages and Maimonides considered hershim like the insane because in their time no-one knew how to teach them. Therefore, the real question is: is the intellectual capacity of a heresh damaged or is it normal and simply hidden from sight? He proceeds to quote Prof. Jeger of Wurttemberg who wrote in 1832 that “the deaf have all the abilities of acquiring speech: intelligence to learn a language, the necessary organs…and the methods to interact with others”. Rabbi Hildesheimer therefore concluded that a heresh who can speak and who manifests normal intelligence is legally competent (Responsa Rabbi Azriel, Even Ha’ezer, no. 58).

Other rabbis have allowed hershim to have aliyot, to be counted in the minyan, and to perform halitzah. In other words, when rabbis saw that hershim can learn to read, write, speak and sign, they changed most of the Talmudic restrictions related to hershim, since they were no longer applicable.

The prophet Isaiah (35:5-6) envisions a time in the future when “the eyes of the blind shall be opened and the ears of the deaf shall be unstopped”. In the meantime, we must do our utmost to make the deaf and other handicapped Jews feel at home in our schools, synagogues and communities.

Selected Bibliography in English

Carl Astor, Who Makes People Different: Jewish Perspectives on the Disabled, USY, New York, 1985, 209 pp.

Julius Greenstone, The Jewish Encyclopedia, Vol. 4, New York, 1903, s.v. Deaf and Dumb in Jewish Law, pp. 479-480

The Jewish Law Annual II (1979), pp. 187-194

Tzvi Marx, Halacha and Handicap: Jewish Law and Ethics on Disability, Jerusalem, 1994, 953 pp.

Jerome Schein and Lester Waldman, eds. The Deaf Jew in the Modern World, Ktav, New York, 1986, 97 pp.

* * * * *

Rabbi Prof. David Golinkin is the President and Rector of the Schechter Institute of Jewish Studies in Jerusalem. His latest book, The Status of Women in Jewish Law: Responsa (Hebrew), can be ordered from www.schechter.edu.

All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.